MAINE SUPREME JUDICIAL COURT                                               Reporter of Decisions
Decision: 2015 ME 23
Docket:   And-14-182; And-14-185
Argued:   February 11, 2015
Decided:  March 10, 2015

Panel:       SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.



                                   STATE OF MAINE

                                              v.

                                     RODA O. ABDI

                                           *****

                                   STATE OF MAINE

                                              v.

                                ALI-NASSIR H. AHMED


ALEXANDER, J.

         [¶1] The Section 8 housing program is a collaborative federal and state

program through which local public housing agencies provide federally-supported

subsidies directly to landlords who rent to low-income tenants who have been

prequalified by the local public housing agencies.1 The program is designed to




   1
      See Cisneros v. Alpine Ridge Group, 508 U.S. 10, 12 (1993); Dussault v. RRE Coach Lantern
Holdings, LLC, 2014 ME 8, ¶ 2, 86 A.3d 52.
2

make quality housing available in the private rental market to individuals classified

as having no income or very low income.2

        [¶2] Between 2002 and 2008, Roda O. Abdi and Ali-Nassir H. Ahmed,

claiming to have no income or very low income, applied for, were found qualified

for, and lived in Section 8 housing, for which the local housing authority paid a

substantial rent subsidy to the landlord.               During this time period, Section 8

eligibility forms that were signed or acknowledged by Abdi and/or Ahmed

indicated that the rental subsidy paid for their apartment was at least $750 per

month, and often much more.

        [¶3] Throughout this time, Abdi and Ahmed owned, managed, or were

employed by the A&R Halal Market and earned income far in excess of the

maximum that would qualify them for Section 8 housing assistance. See 24 C.F.R.

§§ 982.201(a)-(b) (2014). In addition, while living in their subsidized apartment,

Abdi and Ahmed acquired two properties and paid off mortgages totaling $266,000

on those properties. As a result of one of these real estate purchases, Ahmed

became a Section 8 housing landlord and received Section 8 housing assistance

payments for qualifying tenants in the property.




    2
      See 24 C.F.R. § 982.201(a)-(b) (2014) (stating Section 8 family income eligibility requirements);
24 C.F.R. § 5.603(b) (2014) (defining family income levels).
                                                                                                       3

        [¶4] Ultimately, Abdi and Ahmed’s deception was discovered. They are

now before us on appeal from their convictions of theft by deception (Class B),

17-A M.R.S. § 354(1)(B)(1) (2014), entered in the Superior Court (Androscoggin

County, Clifford, J.) following a joint, jury-waived trial.

        [¶5] In this consolidated appeal, Abdi and Ahmed argue that the court erred

in admitting in evidence as business records,3 pursuant to M.R. Evid. 803(6),

certain forms on which they had provided financial information. These forms were

prepared by a property management company for use by the United States

Department of Housing and Urban Development (HUD) and state authorities to

determine the defendants’ eligibility for Section 8 housing assistance. Abdi and

Ahmed contend that (1) these forms did not qualify under the business-records

exception to the hearsay rule, and (2) admission of the forms violated their rights

of confrontation pursuant to the United States and Maine Constitutions.                             We

discern no error or abuse of discretion by the trial court, and we affirm the

judgments.

                                       I. CASE HISTORY

        [¶6]    Viewing the facts in the light most favorable to the State as the

prevailing party, the court rationally could have found the following facts proved

    3
      The restyled Maine Rules of Evidence, effective January 1, 2015, contain adjusted language with
regard to this hearsay exception, without changing its meaning, including that the exception is now named
“Records of regularly conducted activity.” See M.R. Evid. 803(6) (restyled rules).
4

beyond a reasonable doubt. See State v. Medeiros, 2010 ME 47, ¶ 2, 997 A.2d 95.

Between 2002 and 2008, Abdi and Ahmed benefitted from the Section 8 housing

assistance program while living in a subsidized apartment building located on

Bartlett Street in Lewiston. A property management company, North Country Real

Estate Management Associates (NC/REMA), was responsible for creating,

maintaining, and transmitting the relevant housing records to the state and local

authorities overseeing the HUD program. At various points in time, the Lewiston

Housing Authority, Maine State Housing Authority, and Paulhus & Associates, a

third-party contractor hired by the agencies, each assisted in administration of the

housing assistance program by transferring payments to landlords. NC/REMA

conducted prequalifying, annual, and interim interviews of tenants to screen them

for housing assistance eligibility, collected the tenants’ rent contributions, and

handled any eviction proceedings. The landlord of the Bartlett Street property was

St. Laurent Housing Associates.

      [¶7] Abdi owned and operated the A&R Halal Market, a convenience store

located near the subsidized apartment building. The market generated substantial

annual gross deposits—ranging from $405,954 to $843,864—between 2004 and

2008. Abdi had acknowledged and told others that her annual income as the

market’s owner was between $100,000 and $150,000. In addition, in 2004 and

2008, Abdi and Ahmed purchased two pieces of real estate through two different
                                                                               5

limited liability companies, paying off sizeable mortgages within months. As

already noted, as a result of one of these real estate purchases, Ahmed became a

Section 8 landlord and received housing assistance payments on behalf of his

tenants. The substantial funds that Abdi and Ahmed withdrew from the market’s

business account and other sums used to pay off the mortgages far exceeded the

income limits for them to qualify as a family eligible for Section 8 housing

subsidies.

      [¶8] In applying for Section 8 assistance through the NC/REMA eligibility

screening process, Abdi and Ahmed provided NC/REMA with information

regarding their family income and assets, indicating that they owned no assets or

real estate, that Ahmed earned no income, that Abdi had a minimal annual income,

and that Abdi was only a part-time employee of the market rather than an owner.

NC/REMA summarized this information using HUD form 50059, titled “owner’s

certification of compliance with HUD’s tenant eligibility and rent procedures.”

The 50059 paperwork also included an additional form entitled “certification of

zero income,” which was signed under penalty of perjury by both Abdi and Ahmed

in 2002, and by Ahmed alone from 2004 through 2006. These forms, which

provided a financial snapshot for Abdi and Ahmed for each year, were submitted

by NC/REMA to the authority overseeing subsidy payments. The local authority,

in turn, used Abdi and Ahmed’s reported income and the amount of the
6

government-imposed contract rent to determine the subsidy amount to be paid by

HUD to the landlord.

           [¶9] The record demonstrates that the information provided by Abdi and

Ahmed was intentionally false.                    They continued to apply annually, signing

documents supporting their applications, thus creating and reinforcing the

impression that they had little or no income or assets and were qualified for

Section 8 housing assistance. As a result of these applications, Abdi and Ahmed

received Section 8 benefits in the form of a subsidized apartment that was initially

rent free and later cost them a low monthly fee. Their housing subsidies, paid to

the landlord, totaled over $58,000 from 2003 through 2008. The subsidies between

2006 and 2008 far exceeded the $10,000 amount that makes theft by deception a

Class B crime. See 17-A M.R.S. § 354(1)(B)(1).

           [¶10] In July 2012, Abdi and Ahmed were each charged by indictment with

theft by deception (Class B), 17-A M.R.S. § 354(1)(B)(1), of housing assistance

benefits.4 Each pleaded not guilty and waived his or her right to a jury trial.


    4
        Title 17-A M.R.S. § 354(1)-(2) (2014) provides, in relevant part:

          1. A person is guilty of theft if:

              A. The person obtains or exercises control over property of another as a result of
              deception and with intent to deprive the other person of the property. Violation of this
              paragraph is a Class E crime; or

              B. The person violates paragraph A and:
                                                                                                         7

         [¶11] The two cases were tried together in a bench trial in December 2013,

during which the court admitted, over hearsay objections by Abdi and Ahmed, nine

of the 50059 forms dated from 2002 to 2008.5 The State’s primary witness was

Tina Pelletier, President of NC/REMA and a “certified occupancy specialist.”

Pelletier testified as to how the property management company screened tenants,

created and maintained the 50059 forms, and used income and asset information to

calculate the subsidy and the tenant’s share of rent.

         [¶12] Pelletier testified, and the State’s exhibits demonstrated, that she

personally conducted the re-certification interviews with Abdi and Ahmed and

completed the 50059 forms in 2006 and 2007. Pelletier further testified that in

years when other certified occupancy specialists completed the forms, she

nonetheless personally reviewed and transmitted the information on the 50059


                    (1) The value of the property is more than $10,000. Violation of this
                    subparagraph is a Class B crime;

                    ....

        2. For purposes of this section, deception occurs when a person intentionally:

            A. Creates or reinforces an impression that is false and that the person does not believe
            to be true, including false impressions as to identity, law, value, knowledge, opinion,
            intention or other state of mind; except that an intention not to perform a promise, or
            knowledge that a promise will not be performed, may not be inferred from the fact
            alone that the promise was not performed.
    5
       The indictment period was from July 11, 2006, to May 31, 2008, due to the six-year statute of
limitations for a Class B crime. See 17-A M.R.S. § 8(2)(A) (2014). However, the court considered
evidence dating back to 2002, concluding that it was relevant to the state of mind of the defendants and to
show a pattern or course of conduct. See M.R. Evid. 404(b); State v. Olmo, 2014 ME 138, ¶ 15,
106 A.3d 396.
8

forms to the administering agencies and managed the subsidy payments account on

behalf of the landlord.

        [¶13] The court also heard testimony from Kevin Fletcher, the realtor who

sold the two properties to Abdi and Ahmed in 2004 and 2008. He testified that

Abdi and Ahmed were able to pay off their two mortgages, of $120,000 and

$146,000, within nineteen and fifteen months, respectively.

        [¶14]    The court found Abdi and Ahmed guilty as charged in the

indictments.6 In its opinion, the court stated that it had admitted the 50059 forms

as business records pursuant to M.R. Evid. 803(6), finding, based in part on the

testimony provided by Pelletier, that the “form was standard to and essential in the

business of Section 8 housing assistance and it was used in the regular course of

business by NC/REMA.”

        [¶15] Ahmed was sentenced to four years in prison with all but nine months

suspended and three years’ probation. Abdi was sentenced to four years in prison

with all but ten months suspended and three years’ probation. The court also

imposed joint and several liability for restitution in the amount of $46,493. Abdi

and Ahmed each filed a timely appeal, and their appeals have been consolidated by

order of this Court.

    6
       Abdi was also charged with attempted theft by deception (Class D), 17-A M.R.S. §§ 152(1),
354(1)(B)(4) (2014), of funds from the Women, Infants, and Children (WIC) Supplemental Nutrition
Program. The court entered a verdict of not guilty on that charge.
                                                                                                        9

                                     II. LEGAL ANALYSIS

A.      M.R. Evid. 803(6): Business Records Exception

        [¶16] When admission of evidence is challenged, we review a trial court’s

foundational findings to support admissibility for clear error and its ultimate

determination of admissibility for an abuse of discretion. See State v. Gurney,

2012 ME 14, ¶ 36, 36 A.3d 893. Pursuant to M.R. Evid. 803(6), records kept in

the ordinary course of a regularly conducted activity or business7 are admissible as

an exception to the hearsay rule if the proponent lays the proper foundation. A

proper foundation requires a custodian or qualified witness’s testimony to establish

that

               (1) the record was made at or near the time of the events
        reflected in the record by, or from information transmitted by, a
        person with personal knowledge of the events recorded therein;

              (2) the record was kept in the course of a regularly conducted
        business;

               (3) it was the regular practice of the business to make records of
        the type involved; and

              (4) no lack of trustworthiness is indicated from the source of
        information from which the record was made or the method or
        circumstances under which the record was prepared.


   7
     The term “business” is broadly defined in the Rules of Evidence that were applied here to include
any “business, institution, association, profession, occupation, and calling of every kind, whether or not
conducted for profit.” M.R. Evid. 803(6). The restyled Maine Rules of Evidence, effective
January 1, 2015, are similarly broad, now referencing “regularly conducted activity” rather than
“regularly conducted business.” See M.R. Evid. 803(6) (restyled rules).
10

HSBC Mortg. Servs., Inc., v. Murphy, 2011 ME 59, ¶ 10, 19 A.3d 815.

      [¶17] A custodian or other qualified witness is one “who was intimately

involved in the daily operation of the business and whose testimony show[s] the

firsthand nature of his or her knowledge.” Bank of America, N.A. v. Greenleaf,

2014 ME 89, ¶ 25, 96 A.3d 700. The fact that the witness did not prepare or

supervise the preparation of the record does not preclude the witness from

providing the foundation for admissibility.       Bank of America, N.A. v. Barr,

2010 ME 124, ¶ 19, 9 A.3d 816; see also State v. Hager, 691 A.2d 1191, 1193-94

(Me. 1996) (holding that a credit union’s administrative assistant was qualified to

support the introduction of copies of a defendant’s credit card receipts).

      [¶18] Abdi and Ahmed have challenged both Pelletier’s qualifications as a

custodian or qualified witness and the State’s establishment of the requisite

foundational requirements. Although Pelletier did not personally generate the

50059 forms created from 2002 to 2005, she testified in great detail as to her level

of training and her involvement in record-keeping and oversight as President of

NC/REMA. There was competent evidence in the record for the court to find that

Pelletier possessed personal knowledge of each of the forms and that she was

“intimately involved in” the business of processing the forms, either by completing

the forms herself or acting in a supervisory capacity overseeing the creation and

execution of the forms by housing assistance applicants. Greenleaf, 2014 ME 89,
                                                                                                      11

¶ 25, 96 A.3d 700; see Murphy, 2011 ME 59, ¶ 10, 19 A.3d 815; Barr, 2010 ME

124, ¶ 19, 9 A.3d 816.

        [¶19] Through Pelletier’s testimony, the State presented competent evidence

to support the foundational elements necessary for the admission of the business

records. See Murphy, 2011 ME 59, ¶ 10, 19 A.3d 815. Pelletier described how the

forms were kept in the ordinary course of NC/REMA’s business, including the

procedure that the specialists followed in interviewing tenants and recording their

incomes and assets, the manner in which records were maintained and transmitted

to the relevant authorities, and the regularity of the screening and interview

process. Unlike other recent cases implicating the business records exception,

particularly in the foreclosure context, where the entity that created the record has

dissolved or merged into another entity, this case involves the same entity at all

times and a custodian witness who oversaw creation and maintenance of all

relevant records.8 See, e.g., Greenleaf, 2014 ME 89, ¶¶ 3 n.3, 17, 26, 96 A.3d 700.


    8
       Abdi and Ahmed also argue that the rent subsidy information included in the 50059 forms did not
come from the personal knowledge of Pelletier but rather from HUD, and thus constituted hearsay within
hearsay. See M.R. Evid. 805. This argument fails. There is ample evidence in the record demonstrating
that NC/REMA created and maintained the information on the forms throughout the certification process,
albeit using formulas provided by HUD. Additionally, the court allowed Pelletier to testify as to the HUD
information because she was familiar with the federal housing assistance process as a whole and
understood how HUD calculated and made payments to the landlord based on proposals by NC/REMA.
Pelletier also testified that she managed the subsidy payments account on behalf of the landlord and knew
which subsidy payments were attributable to each individual tenant. Thus, even if the 50059 forms
included a subsidy calculation based on a HUD formula, that aspect did not affect admissibility because
the information both originated with NC/REMA and was of the sort that Pelletier could testify was
recorded in the course of regular business by NC/REMA.
12

      [¶20]   Abdi and Ahmed have identified certain purported errors in the

preparation of the 50059 forms, including inconsistent signatures or a lack of

signatures on certain forms and indications that the specialists may not have fully

explained to Abdi and Ahmed what they were signing. However, there is no

requirement in Rule 803(6) that business records be perfect in form in order to be

trustworthy and admissible. Cf. State v. Therriault, 485 A.2d 986, 996 (Me. 1984)

(stating that a finding of lack of trustworthiness is often “predicated on a finding

that the record was altered . . . or that the preparer had some motivation to

misrepresent or misstate results”). Further, the issue of the reliability of the forms

is distinct from the determination of their admissibility. It was the province of the

court as the fact-finder to consider any minor errors in weighing the credibility of

the evidence, and the court did not err or abuse its discretion by finding that the

errors did not affect admissibility. See State v. Cruthirds, 2014 ME 86, ¶ 16,

96 A.3d 80.

      [¶21] Although there was no error in the trial court’s admission of the

50059 forms pursuant to the business records exception, M.R. Evid. 803(6), we

note that the court could have admitted the documents on another basis, one that

neither party suggested to the trial court. The signatures of Abdi and Ahmed on

the forms rendered the forms admissible as nonhearsay admissions of a

party-opponent, representing either their own statements or statements through
                                                                                                   13

which they “manifested an adoption or belief” in the truth of the information

reported on the forms. See M.R. Evid. 801(d)(2).9 Pelletier, who was familiar with

the signatures of Abdi and Ahmed from having previously conducted interviews

and completed the forms for their applications, provided sufficient authentication

during the course of her testimony to demonstrate that the signatures belonged to

Abdi and Ahmed. See M.R. Evid. 901; see also State v. Jones, 405 A.2d 149, 151

(Me. 1979) (“Any statement by a defendant in a criminal case which, in

conjunction with proof of other facts and circumstances, tends to prove guilt is an

admission.”).

       [¶22] We also note that, regardless of how the forms are characterized as an

evidentiary matter, proof of Abdi and Ahmed’s signatures was not required for the

court to find that they were guilty of theft by deception. Abdi and Ahmed were not

charged with perjury or false swearing, either of which would have required the

State to prove that they had made false statements under oath or affirmation. See

17-A M.R.S. §§ 451-452 (2014).                In this case, Abdi and Ahmed applied for

subsidized housing through NC/REMA and provided financial information that

qualified them for assistance, while actually earning income significantly greater

than would qualify them to receive assistance.                  They continued to occupy a


   9
      The restyled Maine Rules of Evidence similarly require that the statement be “one the [opposing]
party manifested that it adopted or believed to be true.” M.R. Evid. 801(d)(2)(B) (restyled rules).
14

subsidized apartment each year through 2008, which, as the trial court correctly

observed, “would not have happened had the HUD subsidies not been paid.”

Taken together, there was sufficient corroborative evidence beyond the signatures

for the court to find that Abdi and Ahmed committed theft by deception.

B.    Confrontation Clause

      [¶23] Abdi and Ahmed also argue that, because they were not given the

opportunity to cross-examine the preparers of the 50059 forms created in 2002 to

2005, admission of the forms in evidence was in violation of their rights pursuant

to the Confrontation Clauses of the United States and Maine Constitutions. The

Confrontation Clauses provide that those who are criminally prosecuted enjoy the

right to be confronted with the witnesses against them. U.S. Const. amend. VI;

Me. Const. art. I, § 6. “We review de novo the impact of the admission of

testimony on the constitutional right to confront witnesses.” State v. Mercier,

2014 ME 28, ¶ 9, 87 A.3d 700.

      [¶24] Although the 50059 forms in this case may have been integral to the

State’s evidence against Abdi and Ahmed, they do not fall within the ambit of the

Confrontation Clauses for several reasons. As an initial matter, a defendant’s

confrontation right is not offended by the admission of evidence through an

exception to the hearsay rule unless that evidence is “testimonial.” Crawford v.

Washington, 541 U.S. 36, 51-53 (2004). “Testimonial” evidence is “typically [a]
                                                                                   15

solemn declaration or affirmation made for the purpose of establishing or proving

some fact,” id. at 51, and includes statements taken “when the circumstances

objectively indicate that there is no . . . ongoing emergency, and that the primary

purpose of the interrogation is to establish or prove past events potentially relevant

to later criminal prosecution,” Davis v. Washington, 547 U.S 813, 822 (2006).

      [¶25] Evidence created for an independent business purpose, even if it later

becomes relevant at a trial, is distinct from testimonial evidence. The Supreme

Court’s opinion in Melendez-Diaz v. Massachusetts informs us that business

records are “generally admissible absent confrontation not because they qualify

under an exception to the hearsay rules, but because—having been created for the

administration of an entity’s affairs and not for the purpose of establishing or

proving some fact at trial—they are not testimonial.” 557 U.S. 305, 324 (2009).

We have followed similar reasoning, noting that M.R. Evid. 803(6), “by its terms,

does not predicate the admission of a business record on the ability of the opposing

party to cross-examine the preparer of the record.” Therriault, 485 A.2d at 996.

Rather, it “applies to all cases where the admissibility of a business record is at

issue, regardless of whether the declarant is available.” Id.

      [¶26] The 50059 forms are not testimonial because they were created to

determine Abdi and Ahmed’s eligibility for federal housing assistance, rather than

for use at trial. Thus, the forms are outside the scope of the Confrontation Clause,
16

and we need not engage in the constitutional “harmless error” analysis suggested

by Abdi and Ahmed. See State v. Dolloff, 2012 ME 130, ¶¶ 33-34, 58 A.3d 1032.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Peter E. Rodway, Esq., Rodway & Horodyski, P.A., Portland,
        for appellant Ali-Nassir H. Ahmed

        Bruce M. Merrill, Esq., Law Offices of Bruce M. Merrill, P.A.,
        Portland, for appellant Roda O. Abdi

        Janet T. Mills, Attorney General, and Leanne Robbin, Asst.
        Atty. Gen., Office of the Attorney General, Augusta, for
        appellee State of Maine


At oral argument:

        Peter E. Rodway, Esq., for appellant Ali-Nassir H. Ahmed

        Bruce M. Merrill, Esq., for appellant Roda O. Abdi

        Leanne Robbin, Asst. Atty. Gen., for appellee State of Maine



Androscoggin County Superior Court docket numbers CR-12-738, CR-12-739
FOR CLERK REFERENCE ONLY
