19-2240
United States v. Maddiwar

                                 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
17th day of June, two thousand twenty.

Present:    ROSEMARY S. POOLER,
            REENA RAGGI,
            WILLIAM J. NARDINI,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                   Appellee,

                            v.                                                19-2240

RAJESH MADDIWAR,

                        Defendant-Appellant. 1
_____________________________________________________

Appearing for Appellant:           Kevin J. Keating, Garden City, N.Y.

                                   Matthew Brissenden, Garden City, N.Y. (on the brief).

Appearing for Appellee:            Jessica Greenwood, Assistant United States Attorney (Sebastian
                                   Swett, Anna M. Skotko, Assistant United States Attorneys, on the
                                   brief), for Geoffrey S. Berman, United States Attorney for the
                                   Southern District of New York, New York, N.Y.


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    The Clerk of Court is directed to amend the caption as above.
Appeal from the United States District Court for the Southern District of New York (Ramos, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Defendant-Appellant Rajesh Maddiwar appeals from the July 19, 2019 judgment of
conviction entered in the United States District Court for the Southern District of New York
(Ramos, J.) for conspiracy to commit wire fraud and bank fraud, in violation of 18 U.S.C.
§ 1349. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

        On appeal, Maddiwar contends that the evidence adduced at trial of his knowing and
willful participation in a conspiracy to defraud homeowners and mortgage lenders and servicers
was insufficient to support his conviction. “We review de novo challenges to the sufficiency of
the evidence,” and we will “affirm if the evidence, when viewed in its totality and in the light
most favorable to the government, would permit any rational jury to find the essential elements
of the crime beyond a reasonable doubt.” United States v. Abdulle, 564 F.3d 119, 125 (2d Cir.
2009) (internal quotation marks and citation omitted).

        We conclude that the evidence at trial of Maddiwar’s knowing and willful participation in
the conspiracy was sufficient. A reasonable jury could have concluded that Maddiwar “knew of
the existence of the scheme alleged in the indictment and knowingly joined and participated in
it,” United States v. Lorenzo, 534 F.3d 153, 159 (2d Cir. 2008) (internal quotation marks and
citation omitted), based on, inter alia, the testimony of victim homeowners as to Maddiwar’s
conduct, e-mails between Maddiwar and his co-conspirators, and Maddiwar’s continued
involvement as a closing attorney in the scheme despite his awareness of complaints from
victims of the fraud.

        Maddiwar argues that the testimony of his co-conspirator, Mario Alvarenga, was fatal to
the government’s case because Alvarenga testified that he did not consider Maddiwar to be a
member of the conspiracy and did not inform Maddiwar of the fraudulent nature of the real estate
transactions. We disagree. The jury was entitled to discount Alvarenga’s testimony as not
credible and, nonetheless, could have reasonably convicted Maddiwar in light of the ample
circumstantial evidence of fraud. See United States v. Triumph Capital Grp., Inc., 544 F.3d 149,
158-59 (2d Cir. 2008) (“In order to avoid usurping the role of the jury, courts must defer to the
jury’s assessment of witness credibility and the jury’s resolution of conflicting testimony when
reviewing the sufficiency of the evidence.” (internal quotation marks and citations omitted)).

        Maddiwar also raises several evidentiary challenges, including to (1) the admission of a
news article (the “Newsday Article”) reporting that Mitchell Cohen had been charged in a
mortgage fraud scheme; (2) the admission of FBI Special Agent Patrick Daly’s testimony about
his interviews of Maddiwar in connection with two prior real estate fraud investigations; and (3)
the preclusion of portions of Maddiwar’s and Carmen Warner’s testimony, which Maddiwar
contends violated his constitutional right to present a defense.




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        “We review evidentiary rulings by the district court for abuse of discretion,” United
States v. Lebedev, 932 F.3d 40, 49 (2d Cir. 2019), though “[w]hether certain evidence is hearsay
is generally a question of law that is reviewed de novo,” Chowdhury v. Worldtel Bangl. Holding,
Ltd., 746 F.3d 42, 54 (2d Cir. 2014). In addition, the district court has “broad discretion in
making its rulings under Rules 403 and 404(b).” United States v. Gilan, 967 F.2d 776, 780 (2d
Cir. 1992).

        We turn first to Maddiwar’s challenge to admission of the Newsday Article, which he
claims constitutes inadmissible hearsay. We need not reach the issue of whether the district court
erroneously admitted the Newsday Article because we conclude that any hypothetical error in
this regard would have been harmless in light of the strong evidence of Maddiwar’s guilt.

        Turning to Maddiwar’s second challenge, we further conclude that Special Agent Daly’s
testimony was not admitted in error. Maddiwar contends that Special Agent Daly’s testimony
violated the rule in Huddleston v. United States that extrinsic evidence should be admitted only if
“there is sufficient evidence to support a finding by the jury that the defendant committed the
similar act,” 485 U.S. 681, 685 (1988), because no evidence was adduced to establish that
Maddiwar was a criminal co-conspirator in the fraud schemes Special Agent Daly was
investigating. But as both parties concede, Special Agent Daly did not testify that Maddiwar had
committed a criminal act or was consciously involved in either of the prior fraud schemes.

       In any event, the district court did not admit Agent Daly’s testimony on Rule 404(b)
grounds, but as an opposing party’s statement, see Fed. R. Evid. 801(d)(2), relevant because it
tended to show that Maddiwar was on notice of fraud in the mortgage industry.

        Nor did the district court abuse its “broad discretion,” see Gilan, 967 F.2d at 780, in
determining that the probative value of this testimony was not “substantially outweighed by a
danger of . . . unfair prejudice,” Fed. R. Evid. 403. Special Agent Daly testified that he
interviewed Maddiwar in connection with Maddiwar’s role as a closing attorney brought in at the
“last minute” to represent sellers in real estate transactions, and that Maddiwar stated during one
of the interviews that he “would only learn about fraud after a closing,” and “there would have
been no reason for a client to contact him after a closing.” App’x at 223-25. This testimony was
probative of Maddiwar’s state of mind, suggesting that Maddiwar was aware of the risk of fraud
while serving as the closing attorney for the fraudulent real estate transactions at issue at trial and
that he may have consciously disregarded complaints about the transactions after closing.
Further, although the particular fraudulent schemes discussed at these FBI interviews were not
identical to the short-sale scheme charged in this case, the former schemes involved conduct
“sufficiently similar to the conduct at issue to permit the jury reasonably to draw from that act
the knowledge inference advocated by the proponent of the evidence.” United States v. Peterson,
808 F.2d 969, 974 (2d Cir. 1987). Insofar as Agent Daly testified that the FBI had twice
interviewed Maddiwar in connection with real estate fraud investigations, any prejudice was
mitigated by the fact that Daly did not suggest that Maddiwar was a target of either investigation,
and defense counsel elicited testimony from him that Maddiwar met with law enforcement
voluntarily, was cooperative, and was never criminally charged in connection with those
investigations.



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        Last, the district court’s preclusion of portions of Maddiwar’s and Carmen Warner’s
testimony did not violate Maddiwar’s right to present a defense. “[W]hether the exclusion of
witnesses’ testimony violated defendant’s right to present a defense depends upon whether the
omitted evidence evaluated in the context of the entire record creates a reasonable doubt that did
not otherwise exist.” Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000) (internal quotation
marks, brackets, and citation omitted)). Maddiwar and Warner both offered extensive testimony
to the same effect as the testimony to which the district court sustained objections. Thus, the
evidentiary rulings that Maddiwar challenges—to the extent that they were erroneous at all—do
not amount to a violation of due process.

        We have considered the remainder of Maddiwar’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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