13-1534-cr (L)

United States v. Komasa

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE

NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the

28th day of August, two thousand fourteen.

Present: ROSEMARY S. POOLER,

PETER W. HALL,

RAYMOND J. LOHIER, JR.,

Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

Appellee,

-v- 13-1534-cr(L); 13-1550-cr(con)

THOMAS KOMASA, HEIDI KOMASA,

Defendants-Appellants.

__________________________________________

Appearing for Appellants: ELIZABETH D. MANN, Tepper Dardeck Levins & Gatos, LLP,

Rutland, VT, for Defendant-Appellant Thomas Komasa

STEVEN YUROWITZ, Newman & Greenberg, New York, NY,

for Defendant-Appellant Heidi Komasa

 

Appearing for Appellee: GREGORY L. WAPLES, Assistant United States Attorney 

(Tristam J. Coffin, United States Attorney; Paul J. Van de Graaf,

Assistant United States Attorney, on the brief), Burlington, VT
Appeal from the United States District Court for the District of Vermont (Sessions, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgments of said District Court be and it hereby is AFFIRMED. 

Thomas and Heidi Komasa appeal from their convictions on multiple counts of mail, wire

and bank fraud, and conspiracy, after a jury trial in the United States District Court for the

District of Vermont (Sessions, J.). Their convictions flow from a mortgage fraud scheme in

which the Komasas purchased and refinanced various residential properties in the greater

Burlington area in the mid-2000s. The Komasas’ challenge to the district court’s admission of

the mortgage loan files as self-authenticating is addressed in a separate opinion filed

contemporaneously with this summary order. In this summary order, we address the remainder

of defendants’ arguments. We assume the parties’ familiarity with the underlying facts,

procedural history, and specification of issues for review.

Both defendants challenge the judgment of conviction on the ground of insufficient

evidence. In reviewing a jury’s finding of guilt, we must view the evidence “in the light most

favorable to the prosecution,” Jackson v. Virginia, 443 U.S. 307, 319 (1979), and determine

“whether the record evidence could reasonably support a finding of guilt beyond a reasonable

doubt,” id. at 318. Defendants challenging the sufficiency of the evidence bear “a heavy

burden.” United States v. Hassan, 578 F.3d 108, 122 (2d Cir. 2008). All reasonable inferences

are to be drawn in the government’s favor, and we defer to the jury's credibility assessments.

United States v. Sabhnani, 599 F.3d 215, 241 (2d Cir. 2010).

We reject defendants’ sufficiency arguments. First, each mortgage application was sent

to the Komasas for their review. The applications required the signer to attest that “the

information provided in this application is true and correct as of the date set forth opposite my

signature,” and acknowledge that “any misrepresentation” on the application could subject the

applicant to civil and criminal penalties. App’x at 198-99. A rational juror could conclude that

even if errors were initially introduced by others during the application process, the Komasas

were guilty of misrepresentation when the applications were signed because they attested to the

truthfulness of the information contained therein. Moreover, the government proferred evidence

to support its theory that the two worked together on the scheme, with Thomas identifying the

properties, negotiating with the sellers and lenders, and filling out the loan applications. Finally,

even assuming “gross monthly income” is susceptible to multiple meanings, a rational juror

could look at Heidi’s claimed income representations of between $6,667 and $20,000 a month

made on the loan applications, compare that with the government’s evidence that the Komasas,

in fact, had little to no earned income, and conclude that there was a material misrepresentation

as to income on the mortgage applications. 

Both Komasas also argue that the government failed to prove National City Bank of

Indiana was insured by the Federal Deposit Insurance Corporation (“FDIC”) during the relevant

time frame of 2005 and 2006 – a required element to establish bank fraud. The government

introduced testimony from James Fanning, an employee of the bank. Fanning testified that there

were three entities – National City Bank of Ohio, Michigan and Kentucky– that, along with

National City Bank of Indiana, “all collapsed their charters into one, just to call it National City

Bank” in 2007. App’x at 520. Fanning also testified that as of 2005, National City Mortgage

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became a division of National City Bank, and the bank became the source of the funds for the

mortgages. On redirect, the government asked Fanning:

Q: In 2005 and 2006, both, was National City Bank a financial

institution whose deposits were insured by the FDIC then?

A: Yes. 

App’x at 518. The Komasas argue that Fanning’s testimony failed to show that National City

Bank of Indiana was FDIC insured. The government argues that taking all of its questions

together, it established that National City Bank of Indiana was federally insured during the

relevant time period. While the government could have more artfully worded its question, the

reasonable inference drawn from Fanning’s testimony is that the National City Bank of Indiana

was FDIC insured during the relevant time period. 

We have considered the remainder of the Komasas’ arguments that are not the subject of

the accompanying opinion, and find them to be without merit. Accordingly, the judgments of

the district court hereby are AFFIRMED. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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