United States v. Rachel Siders , 712 F. App'x 601 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10466
Plaintiff-Appellee, D.C. No.
2:12-cr-00226-JAM-1
v.
RACHEL SIDERS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted October 12, 2017**
San Francisco, California
Before: THOMAS, Chief Judge, and REINHARDT and O’MALLEY,*** Circuit
Judges.
Rachel Siders appeals her jury conviction for bank fraud (18 U.S.C. § 1344),
making a false statement to a federally insured bank (18 U.S.C. § 1014), and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Kathleen M. O'Malley, United States Circuit Judge for
the U.S. Court of Appeals for the Federal Circuit, sitting by designation.
aggravated identity theft (18 U.S.C. § 1028A(a)(1)), in connection with a mortgage
fraud/identity theft scheme against two banks. We affirm Siders’s convictions and
sentence.
I
Because we write only for the parties, we assume familiarity with the facts
and prior proceedings. On appeal, Siders only raises two challenges to her
conviction: she contends that the district court erred by admitting allegedly
fraudulent loan files into evidence as business records under Federal Rule of
Evidence 803(6), and that the district court abused its discretion by concluding that
these loan files were admissible based on the corporate custodian certificates
proffered under Federal Rule of Evidence 902(11). More specifically, Siders
objects to the admission of the loan files for a home equity line of credit
(“HELOC”) for certain Highland Park Drive and Mariposa Avenue properties.
Siders’s conviction was predicated on only the loan files for Highland Park Drive,
however, as the jury deadlocked on the counts related to Mariposa Avenue.
Because Siders does not contend that admission of the latter loan files impacted her
conviction with respect to the Highland Park Drive property—by unduly
prejudicing the jury or otherwise—any error regarding the Mariposa Drive loan
files would be harmless. United States v. Chase, 340 F.3d 978, 993 (9th Cir.
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2003). We therefore only consider Siders’s challenge to admission of the Highland
Park Drive loan files.
II
The government filed a motion in limine under Rule 902 requesting an early
ruling from the district court on the admissibility of certain documents in the case,
including the loan files that contained the allegedly fraudulent documents used to
obtain the HELOCs at issue. The government offered various Rule 902(11)
declarations from the corporate custodian of the allegedly fraudulent records in
support of its claim that the files were business records under Rule 803(6). On the
first day of trial, the district court granted the motion in limine, concluding that the
Rule 902(11) certificates properly authenticated the documents as non-hearsay
business records. Siders appeals this determination.
III
We review a district court’s decision to admit evidence under an exception
to the hearsay rule for abuse of discretion. United States v. McFall, 558 F.3d 951,
960 (9th Cir. 2009). Interpretation of the Federal Rules of Evidence is reviewed de
novo. See United States v. Urena, 659 F.3d 903, 908 (9th Cir. 2011). There was
no reversible error if the records were admissible under any provision. United
States v. Weiland, 420 F.3d 1062, 1073 n.8 (9th Cir. 2005).
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Rule 803(6) sets forth an exception to the hearsay rule for “business records”
as follows:
(6) Records of a regularly conducted activity. A record of an act,
event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by—or from information
transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity
of a business, organization, occupation, or calling, whether or not for
profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian
or another qualified witness, or by a certification that complies with
Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or the
method or circumstances of preparation indicate a lack of
trustworthiness.
Fed. R. Evid. 803. Rule 902 outlines certain items of evidence that are self-
authenticating and do not require the testimony of a foundation witness. Those
items include:
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.
Fed. R. Evid. 902(11).
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IV
The district court did not abuse its discretion in admitting the Highland Park
Drive loan files. These files recorded false statements Siders and her co-
conspirators made in furtherance of their scheme to commit mortgage fraud and
identity theft.
Siders has three objections to the government’s reliance on the loan
documents: (1) that the Rule 902(11) certifications were by records custodians
who lacked familiarity with the creation and preservation of the documents;
(2) that the documents were actually created by her co-conspirators and not
employees acting in the normal course of business; and (3) because the information
in the loan files was false information, they lacked the authenticity necessary to
make them reliable as business records. We reject all three contentions.
As to Siders’s first argument, while Washington Mutual issued the original
loans, the declaration from JPMorgan Chase’s records custodian sufficed under
Rule 902(11) because JPMorgan Chase is the corporate successor to Washington
Mutual. The declaration also satisfied the requirements of Rule 803(6): the
declaration established that the applications were received in the course of loan
processing and maintained thereafter, and this occurred in the regular course of
business. One entity may receive and maintain documents in the regular course of
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business, even if the documents were created by third parties. United States v.
Childs, 5 F.3d 1328, 1333–34 (9th Cir. 1993).
As to Siders’s second point, it is irrelevant that certain documents were
prepared by Siders’s co-conspirators as long as they were received by those
processing the mortgages in the regular course of business. Preparation of the
records was authenticated, moreover, by the individual testimony of the co-
conspirators themselves, who had first-hand knowledge of their preparation.
Finally, we disagree with Siders’s contention that records containing false
statements cannot be business records under Rule 803(6). The content of a record
does not impact the way in which it was received, processed, or maintained. And
the statements in the records that the government alleges were false were not
offered for the truth of the matters asserted—they were proffered precisely because
they were false. United States v. Ray, 930 F.2d 1368, 1370 n.6 (9th Cir. 1990)
(“Nonhearsay statements recorded in a business record need not have been made
under a business duty to be admissible.” (citation omitted)); United States v.
Layton, 855 F.2d 1388, 1400 (9th Cir. 1988) (“Rule 801(d)(2)(E) applies to
statements made during the course and in furtherance of any enterprise, whether
legal or illegal, in which the declarant and the defendant jointly participated.”),
overruled on other grounds, People of Territory of Guam v. Ignacio, 10 F.3d 608,
612 n.2 (9th Cir. 1993).
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V
For these reasons, we conclude the district court did not err in admitting the
Highland Park Drive loan records into evidence. As Siders has raised no other
challenges to her convictions and sentence, those decisions are AFFIRMED.
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