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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