UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT ANDREW BLECHMAN, Defendant - Appellant.
No. 10-3034
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
September 14, 2011
Before MURPHY, EBEL, and HARTZ, Circuit Judges. EBEL, Circuit Judge.
PUBLISH. FILED United States Court of Appeals Tenth Circuit September 14, 2011 Elisabeth A. Shumaker Clerk of Court. Appeal from the United States District Court for the District of Kansas (D.C. No. 5:08-CR-40008-JAR-2).
Christine E. Kenney, Assistant United States Attorney (Barry R. Grissom, United States Attorney, and James A. Brown, Assistant United States Attorney, with her on the brief), Topeka, Kansas, for Plaintiff-Appellee.
EBEL, Circuit Judge.
In January 2009, Defendant-Appellant Robert Andrew Blechman and a codefendant, Itsik (“Issac“) Yass, were tried together in the District of Kansas on charges
Blechman now appeals, challenging the district court‘s admission of an America Online (“AOL“) record that connected him to the e-mail address “rablechman@aol.com” and three PACER records revealing that he accessed fraudulent bankruptcy cases in Tennessee that were similar to the Kansas bankruptcies identified in the indictment. Blechman argues that these records contained double hearsay and that the district court erroneously admitted them under the business records exception to the hearsay rule. See
I. BACKGROUND
On June 11, 2008, a federal grand jury in Kansas returned a thirteen-count first superseding indictment against Defendant-Appellant Robert Blechman and Issac Yass. The indictment charged both defendants with conspiracy to commit mail fraud and aggravated identity theft, in violation of
A. Overview of the Foreclosure Stopping Scheme
At trial, Yass admitted to operating a California-based business named Stopco, the sole purpose of which was to temporarily stop foreclosure sales on homes. Yass would obtain public information about financially troubled homeowners who had received notice from their lenders that they were in default under deeds of trust and that their
When homeowners responded to Yass‘s solicitation, he would follow up by sending an information package explaining his services and containing thank you letters from previous customers. The package informed prospective customers that
[w]e attach your Property, (NOT your name) to an EXISTING BANKRUPTCY, and TEMPORARILY, (ONE TO TWO (2) YEARS) buy you more time.
You, yourself, NEVER need to file for Bankruptcy!
We email you documents, along with instructions, you file them, fax back to us, we get you about ONE MONTH, and we repeat this process monthly!
(Record on Appeal (“ROA“), vol. XI at 86 (Gov‘t Ex. 1-VVV - Stopco information package).) The package also told customers how to deposit Yass‘s initial fee into a Wells Fargo checking account held in the name of Stopco.
In order to stop foreclosures, Yass would “attach” his clients’ properties to bankruptcy cases that were filed in the District of Kansas in the names of fictitious individuals who purported to be doing business as fictitious companies (“DBAs“). Yass accomplished this by preparing a Short Form Deed of Trust conveying a partial interest in the foreclosure property to a DBA in one of the fraudulent bankruptcy cases. The homeowner would then execute the Short Form Deed of Trust and file it with the appropriate county recording office. After receiving a stamped copy of the deed from the homeowner, Yass would fax a copy of the Short Form Deed of Trust, along with a copy
B. Evidence Connecting Blechman to the Scheme
Both the Government and Yass, as part of his defense, offered various types of evidence to prove that Blechman played a role in the foreclosure stopping scheme.
1. AOL Record, Yahoo! Record, and E-mails Between Yass and “rablechman@aol.com”
a. Exhibit 1-BBB - The AOL Record
Early in the trial, the Government sought to introduce an AOL account record, Exhibit 1-BBB, through Patricia Johnson, an investigator with AOL. The purpose of the exhibit was to “show[] that an individual using the screen name ‘Rablechman’ who listed a name and address of ‘Robert Blechman, 10736 Jefferson Blvd., Culver City, CA 90230’ established an account with AOL.” (Aple. Br. at 11-12; see also Aplt. Br. at 17 (stating that the purpose of the exhibit was “to link the email address ‘rablechman@aol.com’ to Blechman“).) Exhibit 1-BBB consisted of three pages. The
Johnson testified that Exhibit 1-BBB was an AOL record kept in the regular course of business, made at or near the time of the information recorded, and made by a person with knowledge of AOL‘s business. She also testified that AOL regularly records the activity reflected in Exhibit 1-BBB and creates reports of that activity. When questioned by defense counsel, however, Johnson admitted that AOL did not verify who originally input the “subscriber information” contained on the third page of the exhibit and that it could have been “anybody in the world who could access a computer.” (Id. vol. V at 329.) For this reason, Blechman objected to admission of Exhibit 1-BBB on hearsay grounds. But the district court overruled the objection, concluding that the exhibit fell within the business records exception to the hearsay rule set forth in
Immediately after the district court admitted Exhibit 1-BBB, the Government called Yahoo! employee Tracy Hart. The Government used Hart to introduce Exhibit 1-AAA, a Yahoo! record containing information about two accounts with the log-in names “stopco” and “rablechman,” respectively. This record established that Yass had two e-mail accounts with Yahoo!: “StopCo@yahoo.com” and “iyy101@yahoo.com.” (ROA, vol. V at 349-51; id. vol. XI at 1-2 (Gov‘t Ex. 1-AAA - Yahoo! account management tool for “stopco“).) It also showed that Blechman had a Yahoo! e-mail address, “rablechman@yahoo.com,” and an alternate e-mail address, “rablechman@aol.com.”1 (Id. vol. V at 352-53; id. vol. XI at 9-10 (Gov‘t Ex. 1-AAA - Yahoo! account management tool for “rablechman“).) The district court admitted Exhibit 1-AAA without objection.
c. E-mails Between Yass and “rablechman@aol.com”
Later in the trial, the Government introduced a series of e-mail exchanges between Yass (using his e-mail address “iyy101@yahoo.com“) and the AOL e-mail address “rablechman@aol.com” that took place between June 6, 2006, and August 6, 2007. Collectively, these e-mails tended to show that whoever was using the e-mail address
Robert A. Blechman - Real Estate Agent & Financing Specialist; Case Manager & Paralegal American Realty & Financial Services; and, Michael N. Sofris, A Professional Law Corporation 10736-666 Jefferson Boulevard - Culver City, California 90230-4969 [or 90230-4933] Telephone (310) 945-5924 - Facsimile (310) 362-0307 - E-Mail: rablechman@aol.com
(ROA, vol. XI at 32-55 (Gov‘t Exs. 1-FFF, 1-GGG, 1-HHH, 1-III, 1-JJJ, 1-KKK, 1-LLL, 1-MMM, 1-NNN, and 1-OOO).)2 Blechman objected to these e-mails on the grounds that any statements by Yass in the e-mail chains were not admissible against Blechman as party admissions. The district court gave a limiting instruction to address Blechman‘s concern,3 and Blechman made no further objections (although he did continue his
Near the end of the trial, Yass took the stand in his own defense. On cross-examination of Yass, Blechman‘s counsel introduced a different series of e-mails between Yass and “rablechman@aol.com.” Some of the e-mails from “rablechman@aol.com” included attachments or links with materials relevant to California real estate practice and foreclosure law. Others referenced apparently unrelated business transactions. Blechman‘s counsel elicited testimony from Yass that Yass received each of these e-mails from Blechman. The purpose of the e-mails was to show that Blechman was merely providing accurate legal advice to Yass rather than participating in an unlawful scheme.4
a. Blechman‘s Use of Yass‘s PACER Account
The Government‘s evidence demonstrated that Yass used the PACER system to assist in carrying out the scheme to stop foreclosures.5 PACER records admitted over Blechman‘s relevancy objection6 established that Yass registered for a PACER account on June 6, 2006,7 and was assigned account “ISO725.” These records also showed that account “ISO725” searched all eleven of the fraudulent Kansas bankruptcy cases.
Yass was arrested on February 28, 2008. But the Government introduced a PACER record, Exhibit 21, showing that someone using account “ISO725” accessed three of the Kansas bankruptcy cases on March 2, 2008, from IP address 76.87.252.123.8 This same IP address was associated with Blechman‘s Yahoo! account-specifically, Exhibit 1-AAA revealed that someone logged in to the “rablechman” Yahoo! account from this IP address five times between January 29, 2008, and August 26, 2008. Moreover, Yass testified that he provided Blechman with his PACER password and that he had an agreement with Blechman whereby Blechman would use PACER to monitor the bankruptcy cases.
b. Blechman‘s Connection to Fraudulent Bankruptcy Cases in Tennessee
The Government also introduced evidence showing that Blechman‘s mother mailed two bankruptcy petitions to the U.S. Bankruptcy Court for the Western District of Tennessee and that Blechman later used his own PACER account to access one of these cases, in addition to other cases filed in the Western and Eastern Districts of Tennessee.
During the early stages of the trial, the Government called Ted Willmann, the manager of the PACER service center in San Antonio, Texas, for the purpose of identifying and establishing a foundation for the admission of three PACER records labeled as Exhibits 22, 23, and 24. These records related to the activity of PACER account “RB1071,” and the Government sought conditional admission of the records, subject to a later showing of relevancy, in anticipation of placing them before the jury later in the trial to prove that Blechman used PACER to access the Murphy bankruptcy filed by his mother, as well as other bankruptcies filed in the Western and Eastern Districts of Tennessee.
Willmann explained that Exhibit 22 was a “screen capture” from PACER‘s “account maintenance application.” (ROA, vol. V at 216; id. vol. XIV at 152 (Gov‘t Ex. 22 - PACER account maintenance application for “RB1071“).) According to Willmann, the record identified the name of an individual who maintained an account with PACER. As Edward Walsh, the analyst in the U.S. Trustee‘s office, later clarified, Exhibit 22 specifically showed that PACER account “RB1071” was registered in the name of “Michael N. Sofris, Apc [A Professional Corporation]“; that “Robert A. Blechman” was the contact person on the account; and that the primary e-mail address for the account was “robert@sofris.com.” (Id. vol. V at 1182-83.) On direct examination, Willmann testified that Exhibit 22 was a PACER record that was created and kept in the regular course of business. Accordingly, the Government moved for conditional admission of the exhibit under the business records exception to the hearsay rule; however, Blechman objected on the grounds that the Government failed to lay an adequate foundation under
On cross-examination by Blechman‘s counsel, Willmann admitted that the information contained in Exhibit 22 was entered by someone accessing PACER on the Internet and that PACER could not verify the accuracy of the information: “We do some verification, but I don‘t know who filled it out is the person that they said they were.” (Id. at 228.) The “some verification” mentioned by Willmann consisted of (1) sending a
Although the Government secured conditional admission of Exhibit 22, the Government never sought to introduce the exhibit later in the trial. Yass, however, moved for unconditional admission of Exhibit 22 when he was cross-examining Walsh during the Government‘s case-in-chief. Although Blechman objected that the exhibit was outside the scope of the Government‘s direct examination of Walsh, he did not renew his hearsay objection. The district court overruled Blechman‘s new objection and fully admitted Exhibit 22.
ii. Exhibits 23 and 24
Willmann similarly testified that Exhibits 23 and 24 were business records of PACER. According to Willmann, these exhibits showed that a specific account, “RB1071,” accessed particular cases through PACER. (ROA, vol. V at 218, 220; id. vol. XIV at 159-60, 166 (Gov‘t Exs. 23, 24 - PACER account activity records for “RB1071“).) The exhibits also included the same registration and contact information for account “RB1071” as did Exhibit 22. Additionally, both exhibits featured lists of all of the accounts that accessed certain cases through PACER. Finally, as Walsh later explained, the last page of each exhibit was a summary that he had prepared showing only activity for account “RB1071.”
The Government moved for conditional admission of Exhibits 23 and 24 under
The Government called Karen Thompson, an employee at the post office in Alla Vista, California, to testify regarding Blechman‘s purchase of postal money orders corresponding to three of the fraudulent bankruptcy cases in Kansas. Thompson identified a series of still photos printed from a post-office surveillance video taken on January 10, 2008, between 1:52 P.M. and 1:59 P.M. These photos depicted a heavyset man with glasses at “Clerk No. 7‘s” window in the post office. Thompson also identified four money orders, two of which were purchased from “Clerk No. 7” on the same date and at the same time when the surveillance video was taken.9 Three of the four money orders were made payable to bankruptcy courts in Kansas in the amount of $54.00 and contained notations indicating that the money was intended as an installment payment for the bankruptcy filing fee.10 Each of these three money orders purported to be from one of the fictitious debtors in the fraudulent bankruptcy cases.
The individual who purchased the money orders on January 10, 2008, also sent priority mail items to Wichita, Kansas, and Baltimore, Maryland, at the same time and as part of the same purchase transaction. Barry Rausch, an investigator with the U.S. Postal Inspection Service, identified Blechman as the individual in the surveillance video and
4. Yass‘s Trial Testimony
As noted above, Yass testified in his own defense during the trial. During his testimony, he blamed Blechman for all of the fraudulent bankruptcies:
I‘m innocent. . . . And I want to show how Mr. Robert Blechman has used my trust in him to plant a virus within my business in order to crash it. And the way he did that was by providing me with fake, fraudulent bankruptcies. Instead of giving me real ones like he was purchasing businesses and then filing them into bankruptcies, he just gave me fraudulent ones. Like time bombs that are exploding now.
(ROA, vol. V at 1347.) Yass claimed that he did not know that any of the bankruptcies were fraudulent until he was arrested. Instead, he believed that Blechman was putting real companies into bankruptcy and allowing him to use the company names to stop foreclosures. Yass testified that he paid Blechman $500 per bankruptcy and that part of Blechman‘s role was to keep track of the bankruptcies, which is why he provided Blechman with his PACER password. Yass also stated that Blechman acted as his “legal counselor.” (Id. at 1514.)
On January 16, 2009, the jury found both defendants guilty of all thirteen counts charged in the indictment. On January 22, 2009, Blechman moved for judgment of acquittal on the identity theft counts (Counts 8-13) and on the conspiracy count (Count 1) to the extent that it charged conspiracy to commit aggravated identity theft. The district court granted the motion on July 6, 2009, and vacated Blechman‘s conviction as to those counts.11 On January 4, 2010, the district court sentenced Blechman to eighteen months’ imprisonment on each of the remaining counts, to be served concurrently. This appeal followed.
III. DISCUSSION
On appeal, Blechman argues that the district court erred in admitting Exhibit 1-BBB (the AOL record) and Exhibits 22, 23, and 24 (the PACER records) under
“We review a district court‘s evidentiary rulings for an abuse of discretion, considering the record as a whole.” United States v. Ledford, 443 F.3d 702, 707 (10th Cir. 2005). Given the fact- and case-specific nature of hearsay determinations, “our review of those decisions is ‘especially deferential.‘” United States v. Hamilton, 413 F.3d 1138, 1142 (10th Cir. 2005) (quoting United States v. Chavez, 229 F.3d 946, 950 (10th Cir. 2000)). Moreover, “if a party objects to a district court‘s hearsay ruling based solely on the Federal Rules of Evidence, we review for nonconstitutional harmless error.” Ledford, 443 F.3d at 707.
Because Blechman timely objected to the introduction of Exhibit 1-BBB on hearsay grounds, the parties agree that we review the district court‘s ruling admitting that exhibit under the abuse-of-discretion standard. With regard to the PACER records (Exhbits 22, 23, and 24), however, the Government argues that we should review
Blechman‘s challenge for plain error because Blechman failed to renew his hearsay objection to these exhibits when Yass offered them for full admission after the Government had already achieved conditional admission underWe begin our analysis by briefly recapping the sequence of events that led to the admission of the PACER records. After Ted Willmann, the PACER manager, testified that Exhibits 22, 23, and 24 were business records of PACER, the Government moved for conditional admission of those exhibits subject to a later showing of relevance. In other words, the Government sought a ruling from the district court that Willmann‘s testimony established an adequate foundation for the admission of the exhibits under
B. Layered Hearsay and the Business Records Exception
The Federal Rules of Evidence define “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
In this case, it is undisputed that the AOL record and PACER records were offered to prove the truth of the matters asserted in these documents—namely, that Blechman was the registered owner of the “rablechman@aol.com” e-mail address and that Blechman was associated with PACER account “RB1071,” which someone used to access fraudulent bankruptcy cases in Tennessee. Accordingly, the records constitute hearsay.
Nevertheless, the district court admitted the records under the business records exception to the hearsay rule, which provides that certain records of regularly conducted
must (1) have been prepared in the normal course of business; (2) have been made at or near the time of the events recorded; (3) be based on the personal knowledge of the entrant or of a person who had a business duty to transmit the information to the entrant; and (4) indicate the sources, methods and circumstances by which the record was made were trustworthy.
United States v. Ary, 518 F.3d 775, 786 (10th Cir. 2008). Blechman argues that Exhibit 1-BBB and Exhibits 22, 23, and 24 do not meet these requirements because the records feature “double” or “layered” hearsay in the form of unverified user-input information.
This Court, however, has recognized one exception to the general rule: information provided by an outsider that is included in a business record may come in under the business records exception “[i]f the business entity has adequate verification or other assurance of accuracy of the information provided by the outside person.” United States v. McIntyre, 997 F.2d 687, 700 (10th Cir. 1993); see also United States v. Cestnik, 36 F.3d 904, 908 (10th Cir. 1994). In the context of identity information provided by an outsider, we have identified “two ways to demonstrate this ‘guarantee[] of trustworthiness‘: (1) proof that the business has a policy of verifying [the accuracy of information provided by someone outside the business]; or (2) proof that the business possesses ‘a sufficient self-interest in the accuracy of the [record]’ to justify an inference of trustworthiness.” Cestnik, 36 F.3d at 908 (some alterations in original) (quoting McIntyre, 997 F.2d at 700).
Applying these principles, we conclude that the district court erred in admitting Exhibit 1-BBB and Exhibits 22, 23, and 24 under
But the record makes clear that neither AOL nor PACER made a meaningful attempt to verify the identity of the person who submitted the information. Beginning with AOL, Patricia Johnson, the AOL investigator, admitted that AOL did not verify who input the “subscriber information” contained on the third page of Exhibit 1-BBB and that it could have been “anybody in the world who could access a computer.” (ROA, vol. V at 329.) Moreover, Exhibit 1-BBB states in no uncertain terms that AOL made no effort to verify the identity of the individual who registered the “rablechman” account: “Registration information is recorded but not verified. Fictitious names and addresses are common.” (Id. vol. XI at 13 (Gov‘t Ex. 1-BBB – AOL account information for “rablechman“).) With respect to PACER, Ted Willmann, the PACER manager, acknowledged that PACER did no more than ensure that whoever created account “RB1071” entered a valid mailing address and did not provide identifying information matching that of an existing user. PACER took no steps, however, to verify the authenticity of the identifying information. Furthermore, nothing in the record suggests—and the Government does not argue—that either AOL or PACER “had a sufficiently compelling self-interest in ensuring the accuracy of information filled out by [their] customers to justify an inference of reliability.” Cestnik, 36 F.3d at 908. If anything, the record reveals that AOL and PACER were uninterested in the accuracy of
C. Harmless Error
That the district court erroneously admitted Exhibit 1-BBB and Exhibits 22, 23, and 24 as business records does not automatically entitle Blechman to relief. We will not reverse a defendant‘s conviction on the basis of the district court‘s erroneous admission of hearsay evidence if the error was harmless to the defendant. See Ledford, 443 F.3d at 712. As mentioned above, when a defendant objects to a district court‘s admission of hearsay “based solely on the Federal Rules of Evidence,” we apply the nonconstitutional harmless error standard.15 Id. at 707. Under that standard, “[a] harmless error is one that does not have a substantial influence on the outcome of the trial; nor does it leave one in grave doubt as to whether it had such effect.” United States v. Collins, 575 F.3d 1069, 1073 (10th Cir. 2009) (internal quotation marks omitted); see also Cestnik, 36 F.3d at 910 (“A nonconstitutional error, such as the erroneous admission of evidence under a well-established exception to the hearsay rule, is harmless unless it had a substantial influence on the outcome or leaves one in grave doubt as to whether it had such effect.” (internal quotation marks omitted)). We “review[] the record as a whole de novo to evaluate whether the error [was] harmless, examining the context, timing, and use of the erroneously admitted evidence at trial and how it compares to properly admitted
1. Exhibit 1-BBB
We first consider the improperly admitted AOL account record. Blechman argues that the admission of Exhibit 1-BBB harmed him because the exhibit linked him to the e-mail address “rablechman@aol.com,” which allowed the jury to conclude that he was the person who was sending incriminating e-mails to Yass. The Government contends, however, that the admission of Exhibit 1-BBB could not have influenced the outcome of the trial because other overwhelming evidence linked Blechman to the “rablechman@aol.com” e-mail address. We are persuaded by the Government‘s argument. Several other pieces of evidence that were properly admitted during the course of the trial connected Blechman to the “rablechman@aol.com” e-mail address, which undermines his claim that Exhibit 1-BBB influenced the outcome of the trial. See United States v. Clifton, 406 F.3d 1173, 1179 (10th Cir. 2005) (“Where the wrongly admitted evidence was cumulative of other properly admitted evidence, it is less likely to have injuriously influenced the jury‘s verdict.” (alteration and internal quotation marks omitted)); Flanagan, 34 F.3d at 955 (concluding that the district court‘s erroneous admission of testimony indicating that the defendant was involved in a prior scam was
We start with the e-mails themselves.16 Not only is Blechman‘s name in the “rablechman@aol.com” e-mail address, but each e-mail from “rablechman@aol.com” contained the following signature block, which plainly identifies Blechman as the sender:
Robert A. Blechman – Real Estate Agent & Financing Specialist; Case Manager & Paralegal
American Realty & Financial Services; and,
Michael N. Sofris, A Professional Law Corporation
10736-666 Jefferson Boulevard – Culver City, California 90230-4969 [or 90230-4933]
Telephone (310) 945-5924 – Facsimile (310) 362-0307 – E-Mail: rablechman@aol.com
(ROA, vol. XI at 32–55 (Gov‘t Exs. 1-FFF, 1-GGG, 1-HHH, 1-III, 1-JJJ, 1-KKK, 1-LLL, 1-MMM, 1-NNN, and 1-OOO).) Thus, the e-mails provided some evidence that Blechman was the user of the “rablechman@aol.com” e-mail address.
Furthermore, Exhibit 1-AAA, the Yahoo! account record, contained the exact same information that Blechman finds objectionable in Exhibit 1-BBB. Specifically, Exhibit 1-AAA showed that Blechman maintained “rablechman@aol.com” as an alternate e-mail address to his “rablechman@yahoo.com” address. (ROA, vol. XI at 9–10 (Gov‘t Ex. 1-AAA – Yahoo! account management tool for “rablechman“).). Blechman did not object to the district court‘s admission of this exhibit, nor does he challenge its admission on appeal.
In light of all of the properly admitted evidence linking Blechman to the “rablechman@aol.com” e-mail address, we conclude that the Government has met its burden of demonstrating that the district court‘s erroneous admission of Exhibit 1-BBB was harmless to Blechman.
2. Exhibits 22, 23, and 24
We next turn to the PACER records. Blechman contends that the admission of Exhibits 22, 23, and 24 harmed him because they showed that he was the individual using PACER account “RB1071” to “monitor[] fraudulent [bankruptcy] petitions in Tennessee that mirrored the content and form of the [Kansas] petitions that were the subject of the Indictment.” (Aplt. R. Br. at 7.) The Government, by contrast, argues that the evidence against Blechman was overwhelming and that “[t]he introduction of records showing that [Blechman] accessed fraudulent bankruptcy cases in Tennessee with his own PACER account did not appreciably add to the collective weight of this overwhelming evidence.” (Aple. Br. at 41.) We agree with the Government. Given the amount of other evidence
Our cases recognize that the probative value of the erroneously admitted evidence and the overall strength of the other evidence against the defendant are critical factors in the harmless-error analysis. See, e.g., United States v. Pursley, 577 F.3d 1204, 1227 (10th Cir. 2009) (holding that admission of an exhibit was harmless where, among other things, the exhibit “offered little probative evidence” of the defendant‘s guilt); United States v. Perez, 989 F.2d 1574, 1583–84 (10th Cir. 1993) (en banc) (holding that the district court‘s erroneous admission of hearsay statements was harmless because the evidence of the defendant‘s guilt was “overwhelming“). Here, the challenged PACER records showed that Blechman was involved with fraudulent bankruptcies in Tennessee, but they did not connect him to the fraudulent Kansas cases that formed the basis for the charges against him. Thus, as Blechman himself acknowledges, the records had “slim (if any) evidentiary relevancy.”17 (Aplt. Br. at 16.) Moreover, all of the following, more probative evidence demonstrated Blechman‘s involvement in the scheme described in the indictment: (1) Blechman‘s e-mails to Yass; (2) the photos, other documentary evidence, and testimony indicating that Blechman filled out and mailed money orders in the names
IV. CONCLUSION
For the foregoing reasons, we AFFIRM Blechman‘s convictions for mail fraud and conspiracy to commit mail fraud.
HARTZ, Circuit Judge, concurring:
I fully join Judge Ebel‘s opinion. I write separately only to point out that if the challenged documents had been properly offered for admission, the embedded-hearsay problem could have been avoided. Although the documents were not admissible as assertions that the e-mail address was Blechman‘s, they were admissible to show that the e-mail address belonged to someone who claimed to be Blechman and provided his name and street address.
I recognize that almost 20 years ago in United States v. McIntyre, 997 F.2d 687 (10th Cir. 1993), we rejected the view of the Second Circuit in United States v. Lieberman, 637 F.2d 95, 101 (1980), which upheld the admission of a hotel guest card for the nonhearsay purpose of showing that the person who registered used a particular name (not that the person who registered was the person named). We said that there was no distinction between (1) offering a motel registration card to prove that the defendant herself checked into the hotel and (2) offering the card to prove that someone claiming to have the same name as the defendant checked into the motel. See McIntyre, 997 F.2d at 699 n.9. Since then, we have explained our holding in McIntyre as based on a concern “that offering an asserted identity to prove that the named individual took the action in question, or merely to prove that someone claiming to be the named individual took the action in question, was simply an artificial, semantic distinction that factfinders would
In recent years, however, the public has been bombarded with tales of identity theft. What might have been a subtle distinction in decades past, is now almost a matter of common sense. Jurors would be likely to use the documents only for their proper nonhearsay purpose. They will know very well that someone other than Blechman may have opened an email account in Blechman‘s name. They will want additional evidence before deciding that the person who opened the account was indeed Blechman. But when they make their decision, they should be permitted to consider the identification information used by whoever opened the account. Indeed, our opinion in this case recognizes that the presence of sufficient identifying information (the signature block on Blechman‘s e-mail, see Op. at 31) would suggest that the person providing that information was the identified person. In sum, I do not think that a district court would be abusing its discretion in admitting such evidence for the nonhearsay purpose if it found that the likelihood of jury confusion was minimal.
Notes
Now, ladies and gentlemen of the jury, this exhibit [1-GGG] is an e-mail from someone using an address that I think the evidence shows belongs to Mr. Yass. There‘s there‘s e-mails back and forth. And I think this one is an e-mail message from Mr. Yass or someone using Mr. Yass’ e-mail and then a response e-mail from Mr. Blechman or somebody using Mr. Blechman‘s e-mail account.
Now, Mr. Yass’ e-mail to Mr. Blechman are statements by Mr. Yass. You can consider . . . what Mr. Yass says against Mr. Yass, but you can‘t consider it against Mr. Blechman. Conversely, the response e-mail from Mr. Blechman, statements by Mr. Blechman, you can consider what Mr. Blechman says against him . . . . You can‘t consider what Mr. Blechman says against the interest of Mr. Yass.
(ROA, vol. V at 719.) Blechman did not object to this instruction.Now we were talking about your relationship with Mr. Blechman and Mr. Sofris. Mr. Blechman gave you some simple legal advice, didn‘t he? . . . Your legal assistant essentially? . . . And as part of that role, he gave you advice about what was legal and what was not legal in the foreclosure business, right?
(ROA, vol. V at 1514.) When explaining the relevance of this same e-mail to the judge, Blechman‘s counsel stated,Mr. Yass is testifying that Mr. Blechman is engaging in this fraud, yet at the same time he is providing him E-mails about the law that sets out exactly what a foreclosure consultant can do and cannot do . . . . And so Mr. Blechman is providing him information about what he legally can do and what he legally cannot do, which is completely inconsistent with the idea that he is just this fraudster ignoring the law.
(Id. at 1516.)First, in his briefs to this Court, the entirety of Blechman‘s discussion of the foundation issue consists of a conclusory statement at the end of the section of his Opening Brief concerning the impropriety of admitting Exhibit 1-BBB under
Because the exclusion of Exhibit 1-BBB would have eliminated the evidentiary link between the name “Robert Blechman” and the e-mail address “rablechman@aol.com,” then there would not have been a sufficient foundation for the admission of the e-mails marked as Government Exhibits 1-FFF, 1-GGG, 1-HHH, 1-III, 1-JJJ, 1-KKK, 1-LLL, 1-MMM, 1-NNN, 1-OOO. Therefore, the admission of those e-mails was also error.
(Aplt. Br. at 31-32.) Blechman has neither mentioned the plain-error standard nor made any attempt to show how he can satisfy that standard. “[T]he failure to argue for plain error and its application on appeal . . . surely marks the end of the road for an argument for reversal not first presented to the district court.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011).
Second, it is not clear that Exhibit 1-BBB constituted the foundation (or even part of the foundation) for the admission of the e-mails. Blechman has cited no portion of the record to support this assertion.
Under these circumstances, the district court did not plainly err in admitting the e-mails introduced by the Government. Accordingly, we assume that the e-mails were properly admitted.
The following are not excluded by the hearsay rule . . . .:
(6) Records of Regularly Conducted Activity.--A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with
[T]he defendant‘s introduction of six e-mails from rablechman@aol.com to Yass during his cross-examination of Yass, along with his eliciting from Yass that each e-mail came from the defendant, manifested a belief in the truth of the information in Exhibit 1-BBB establishing an evidentiary link between the name “Robert Blechman” and the e-mail address “rablechman@aol.com.” Thus, once the defendant introduced his first e-mail from rablechman@aol.com . . . and solicited from Yass that this e-mail came from the defendant, Government‘s Exhibit 1-BBB ceased to be hearsay, and the basis for the defendant‘s objection evaporated altogether because an adoptive admission under
Rule 801(d)(2)(B) “is not hearsay.”
(Aple. Br. at 31–32 (citation omitted).)
This Court may, of course, uphold the district court‘s admission of evidence “on any ground that finds support in the record, even where the lower court reached its conclusion[] from a different or even erroneous course of reasoning.” Ledford, 443 F.3d at 707 (internal quotation marks omitted). In this case, however, we need not decide whether Exhibit 1-BBB “ceased to be hearsay” at some point after the district court‘s erroneous admission of the exhibit under