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United States v. Mavashev

January 14, 2010

UNITED STATES OF AMERICA,
v.
ROMAN MAVASHEV, DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge

MEMORANDUM AND ORDER

Defendant Roman Mavashev is charged with conspiracy to commit bank fraud, conspiracy to commit wire fraud, and three substantive counts of bank fraud. Defendant moves in limine to preclude the testimony of one of the government's proposed expert witnesses, or, in the alternative, for a Daubert hearing and an order for further government disclosure as to this witness's proffered testimony. The government opposes defendant's motion and cross-moves in limine to preclude certain cross-examination of two of its cooperating witnesses. Defendant does not oppose the government's motion. For the reasons set forth below, the defendant's motion is denied in part and granted in part. The government's motion is granted in its entirety.

I. Background

Defendant is a licensed mortgage broker, whose practice is regulated by the New York State Banking Department ("NYSBD"). The government alleges that defendant used his position as owner and operator of New Generation Funding ("NGF"), a mortgage brokerage firm, to "obtain loans for unqualified straw buyers," who purchased multiple properties based on fraudulent loan applications. (Govt. Mem. in Opp'n at 2.) This allegedly induced multiple lenders to extend loans for the same property, allowing defendant to profit from the transactions as the properties subsequently fell into foreclosure. (See id.) The instant Memorandum and Order assumes familiarity with the factual and procedural history of this case. For more details, refer to the court's Memorandum & Order denying defendant's motion to dismiss the indictment. See generally United States v. Mavashev, 2009 WL 4746301 (E.D.N.Y. Dec. 7, 2009).

II. Discussion

A. Expert Testimony of Rholda Ricketts

By letters dated November 12 and 19, 2009 (Docket Entry Nos. 24 and 26, respectively), the government disclosed its intention to call as an expert witness Rholda Ricketts, Deputy Superintendent of the NYSBD's Mortgage Banking Division. Defendant moves to preclude all of Ricketts' testimony on the grounds that this disclosure was insufficient. Specifically, defendant argues that the government failed to adequately explain the bases for Ricketts' expert opinions as required by Federal Rule of Criminal Procedure 16(a)(1)(G). (Def's. Mot. at 2.) As discussed in Part II.A.1, infra, the court finds this argument to have no merit.

1. Sufficiency of Government Disclosure

"At the defendant's request, the government must give to the defendant a written summary of any testimony that the government intends to use under [the Federal Rules of Evidence governing expert witnesses] during its case in chief at trial." FED. R. CRIM. P. 16(a)(1)(G). "[This] summary... must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Id. The purpose of this rule is to "provide the opponent with a fair opportunity to test the merit of the expert's opinion through focused cross-examination." United States v. Cruz, 363 F.3d 187, 196 n.2 (2d Cir. 2004).

"Even if the disclosure provides a sufficient summary of any opinions to be offered by the witness, it may be excluded if the [party] has made no attempt at all to describe the bases and reasons for those opinions...." U.S. v. Mahaffy, 2007 WL 1213738, at *2 (E.D.N.Y. Apr. 24, 2007) (emphasis added) (citation and internal quotation marks omitted). However, the failure to disclose must generally be complete before a court will preclude an expert witness from testifying. See, e.g., U.S. v. Tin Yat Chin, 476 F.3d 144, 146 (2d Cir. 2007) (criticizing government for failing to disclose existence of expert witness until start of defense case); Cruz, 363 F.3d at 196 (reversing conviction in part because government completely neglected to inform defense of expert witness); Mahaffy, 2007 WL 1213738, at *2 (involving case where defendant failed to provide summary of proposed expert witness testimony until start of trial).

Defendant urges the court to preclude the expert testimony of Ricketts entirely on the grounds that the government has provided "not even a hint" as to the "'bases and reasons' for any of [her] opinions." (Def.'s Reply Mem. at 2.) Such a claim is belied by the record. In its initial disclosure letter, the government stated that Ricketts would testify as to proper mortgage loan procedures, and also testify about an NYSBD audit of defendant's brokerage firm. As the basis for Ricketts' expertise regarding the former, the government provided her resume, which details nearly twenty-five years of service with the NYSBD. (See id.; see also Govt. Mem. in Opp'n, Ex. 3.) As the basis for Ricketts' expertise regarding the NYSBD audit, the government referred defendant to the audit records provided during discovery. (See Docket Entry No. 24 at 1.) In response to defendant's request for additional detail, the government filed a second letter, elaborating on the substance of Ricketts' proposed testimony in four detailed paragraphs. (See generally Docket Entry No. 26 at 1--2.) The government further explained that her opinions regarding the defendant's alleged fraud were based in part on the NYSBD's requirement that "mortgage brokers maintain a log of all loan[] applications they receive and process." (Govt. Mem. in Opp'n at 5.)

In light of the above, it cannot be asserted that the government has "made no attempt at all" to comply with Fed. R. Crim. P. 16(a)(1)(G). On the contrary, the court finds the government's disclosure regarding Ricketts to be satisfactory, as it provides the defendant ample opportunity to prepare a cross-examination. See Cruz, 363 F.3d at 196; see also U.S. v. McCloud, 303 F. App'x 916, 917 (2d Cir. 2008) (holding that government's pre-trial disclosure, which similarly identified expert witnesses and summarized their testimony, met the requirements of Fed. R. Crim. P. 16(a)(1)(G)).

2. Rule 704(b) Restrictions

Defendant also moves to preclude four aspects of Ricketts' proposed testimony on various evidentiary grounds. First, he argues that Ricketts' testimony as to whether a "typical broker" would know that certain actions constitute fraud would violate Federal Rule of Evidence 704(b). (Id. at 3.) Second, defendant contends that Ricketts' testimony as to the materiality of defendant's allegedly fraudulent statements "is an element of bank fraud that must be proved to the jury upon a proper instruction from the court, not an expert witness." (Id. at 4--5.) Third, defendant contends that Ricketts' testimony regarding an audit conducted by the NYSBD would constitute inadmissible hearsay. (Id. at 6.) Finally, defendant argues that ...


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