Addressing The Failure To Provide Written Notice To Introduce Business Records Under FRE 902(11)

In mortgage fraud prosecution, government provided oral notice of its intent to introduce self-authenticating business records but failed to provide written notice as required under FRE 902(11); Second Circuit concludes that the record supported a finding that actual notice had been provided, while "caution[ing] that parties fail to comply with the Rule 902(11)’s written notice requirements at their own risk," in United States v. Komasa, _ F.3d _ (2d Cir. Aug. 28, 2014) (Nos. 13–1534–cr(L); 13–1550–cr(Con))

FRE 902(11) provides that certified business records may be self-authenticated and admitted without a custodian witness. To obtain the benefits of this rule, and admit business records under FRE 803(6), pretrial written notice is required. As the rule states:

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.

The Second Circuit considered application of the rule where pretrial written notice was not provided

Trial Court Proceedings: Considering The Failure To Provide Written Notice

The case involved a mortgage fraud scheme. At trial, the government sought to admit loan application files for the mortgages. The defendants objected, claiming that the government failed to provide the required pretrial written notice under FRE 902(11). The government acknowledge that written notice had not been provided, however the defense had been advised orally of the intent to admit the records as self‐authenticating. Defense counsel acknowledged that the business record certificates had been provided in discovery along with a list of custodian witnesses, adding: "It’s not up to me to figure out in advance what they’re going to do." The trial court asked:

What are you thinking when they give you actually a self-authenticating document like a certificate under Rule 902, subsection 11 — and I’m sure that there must be a cover letter. They are giving you this certificate. Obviously that is the way by which they intend to introduce these documents.

Komasa, _ F.3d at _. The court determined that the business record requirements were met and allowed the records to be self-authenticated without any custodian witnesses. Following their jury trial convictions, the defendants filed post-trial motions for judgments of acquittal, or, alternatively, for new trials. The trial court denied the motion:

It is true the Government failed to provide written notice to the defendants that it intended to introduce the loan files as self‐authenticating pursuant to Rule 902(11). However, the Government produced all loan files and business records certificates as part of discovery well in advance of trial. At a motions hearing in 2012, the Government represented orally that the loan files were admissible as self‐authenticating records. It gave the defense copies of recently completed declarations from records custodians for six of the mortgage lenders on April 17, 2012, although some of those declarations did not comply with Rule 803(6). Other certifications were turned over later. Those certifications complied with Rule 803(6). On June 19, 2012, the Government turned over by email declarations which complied with the Rule and were intended to be offered into evidence. Those certifications indicated the records were kept in the course of a regularly conducted business activity, made in the regularly conducted business activity as a regular practice of the institution, and were made at or near the time of the occurrence of the matters set forth through automated processes or by, or from information transmitted by, a person with knowledge of those matters.

The defense was clearly on notice that the Government sought to introduce the loan documents as business records under Rule 803(6), and that the 31 documents were intended to qualify as self‐authenticating under Rule 902(11). To be sure, the rule requires written notice. However, the Government provided both oral notice and the certificates which were clearly for the purpose of notifying the defense the Government intended to introduce such documents as self‐authenticating. Given actual notice and substantial compliance with Rules 803(6) and 902(11), the Court permitted introduction of the documents. The Court reaffirms the decision here.

Komasa, _ F.3d at _ (citation omitted). The defendants appealed contending that the trial 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." Komasa, _ F.3d at _.

Second Circuit Review: Considering Whether Actual Notice Was Sufficient

The Second Circuit noted the issue presented was "whether that requirement [under FRE 902(11)] may be excused where an objecting party admits to having actual notice and an opportunity to challenge the Rule 902(11) evidence.” The circuit concluded that there was sufficient support for the trial court finding "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." As the circuit noted:

While not faced with the ideal set of circumstances, we cannot say the district court abused its discretion in admitting the documents as self-authenticating. This is especially the case because here, as defendants candidly admitted at oral argument, they did have a chance to challenge the authenticating certificates. See, e.g., United States v. Daniels, 723 F.3d 562, 579‐81 (5th Cir. 2013) (rule objective is to provide adverse party adequate time to investigate and challenge the adequacy of the underlying records).

Komasa, _ F.3d at _.

The circuit underscored that the notice was not ideal:

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 governmentʹs decision to introduce them at trial.

Komasa, _ F.3d at _.

Conclusion

The Komasa case shows the importance of complying with the pretrial written notice requirement for FRE 902(11). The government took the steps to provide notice but did not do so explicitly. The trial court and Second Circuit considered the surrounding circumstances and concluded that the objective of the rule was fulfilled by actual notice.

For another case addressing the pretrial notice requirement, consider Fifth Circuit Reviews Challenge To Pretrial Notice For Business Records Admitted Under FRE 902(11).

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Comments

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Great blog.

Great substance and links. Self-authentication is often attempted in third-party debt-buyer lawsuits.

Jesse Langel

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