United States v. Blechman

657 F.3d 1038
CourtCourt of Appeals for the Tenth Circuit
DecidedSeptember 14, 2011
DocketNo. 10-3034
StatusPublished

This text of 657 F.3d 1038 (United States v. Blechman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Blechman, 657 F.3d 1038 (10th Cir. 2011).

Opinions

EBEL, Circuit Judge.

In January 2009, Defendanh-Appellant Robert Andrew Blechman and a codefendant, Itsik (“Issac”) Yass, were tried together in the District of Kansas on charges of mail fraud, aggravated identity theft, and conspiracy to commit mail fraud and [1041]*1041aggravated identity theft. Evidence introduced at trial showed that Yass operated a business that he used to temporarily halt home foreclosures by “attaching” foreclosure properties to fraudulent bankruptcy cases in order to take advantage of the Bankruptcy Code’s automatic stay provision. Several different pieces of evidence connected Blechman to Yass’s scheme, including e-mails sent from “rablechman@ aol.com” to Yass, Public Access to Court Electronic Records (“PACER”) records suggesting that Blechman accessed fraudulent bankruptcies using both Yass’s PACER account and his own PACER account, postal money orders that Blechman filled out and mailed to bankruptcy courts to pay filing fees on behalf of fictitious debtors, and Yass’s trial testimony explaining Blechman’s role in the scheme. After a two-week trial, the jury found Blechman and Yass guilty of all of the counts charged against them. The district court granted Blechman’s motion for judgment of acquittal on the identity theft counts and ultimately sentenced Blechman to a total of eighteen months’ imprisonment on the remaining counts.

Blechman now appeals, challenging the district court’s admission of an America Online (“AOL”) record that connected him to the e-mail address “rableehman@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 Fed.R.Evid. 803(6). Exercising jurisdiction under 28 U.S.C. § 1291, we hold that the district court erred in admitting the challenged AOL and PACER records under Rule 803(6). Nevertheless, because we conclude that the error was harmless, we AFFIRM Blechman’s convictions.

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 18 U.S.C. § 371 (Count 1); mail fraud, in violation of 18 U.S.C. §§ 2 and 1341 (Counts 2-7); and aggravated identify theft, in violation of 18 U.S.C. §§ 2 and 1028A (Counts 8-13). In January 2009, Blechman and Yass were tried together in a two-week jury trial in the District of Kansas. In this section, we detail the trial proceedings that are relevant to the evidentiary issues raised in this appeal.

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 properties were subject to foreclosure. Yass would then solicit these homeowners by sending them a letter stating that he could help them keep their properties for up to two years for a monthly fee of $499.99.

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. [1042]*1042You, 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-VW — 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 of the Notice of Bankruptcy Filing for the case involving the DBA listed in the deed, to the person in charge of the foreclosure sale. Because the Bankruptcy Code provides for an automatic stay of all collection efforts against property of the bankruptcy estate during the pendency of a bankruptcy case, see 11 U.S.C. § 362(a), the creditor would cancel the foreclosure sale upon receipt of the documents from Yass showing that an entity in bankruptcy held an interest in the property. The Government identified eleven fraudulent bankruptcy cases in the District of Kansas that Yass used to carry out this scheme, although in two of those cases the petitions were intercepted before they were filed.

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.

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Bluebook (online)
657 F.3d 1038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-blechman-ca10-2011.