Opinion
18-CR-51 (ENV) (S-3)
11-26-2019
UNITED STATES OF AMERICA, v. TAMAZ PASTERNAK, also known as "Tomas Pasternak," Defendant.
SHORT-FORM MEMORANDUM & ORDER
With jury selection completed on November 25, 2019, trial in this case is scheduled to commence on December 2, 2019. Pasternak and the government have each filed motions in limine. Having heard argument on November 20, 2019, and having considered the parties' submissions, the motions are resolved in the manner and for the reasons set forth below.
| Request | Ruling |
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| I. Defendant's Motions in Limine | |
| (A) Pasternak moves, pursuant to FederalRule of Evidence 403, to exclude evidence offaulty or missing airbags in two of thevehicles purchased from him. Dkt. 104("Def.'s Mot.") at 1. The Indictment chargesPasternak with one count of wire fraudconspiracy and four counts of wire fraud,alleging his involvement in a scheme tofraudulently obtain Indiana "rebuilt" vehicletitles, certifying the road-worthiness of | (A) At argument, the government clarifiedthat it intends to introduce evidence of faultyor missing airbags only as to one vehicleinvolved in the fraudulent scheme, and for thepurpose of showing that the vehicle would nothave passed a New York salvage vehicleexamination because of the condition of theairbags. See N.Y. Veh. & Traf. Law § 398-d(6)(b), (e). The condition of that vehicle'sairbags, therefore, is highly probative of |
| vehicles that had been repossessed byinsurance companies as total losses andclassified by them as "salvage." Theindictment further alleges that Pasternak,hiding the salvage history of these and othervehicles, fraudulently misrepresented to NewYork purchasers that the vehicles had a"clean" non-salvage history.Zeroing in on the nature of a "salvageexamination" that is a condition precedent toobtain New York title for the year and type ofvehicles that are subject of the indictment,Pasternak contends the objective is to ensurethat only non-stolen parts have been used inthe rebuilding process, regardless of whetherthese parts are safety-related. Def.'s Mot. at 1& n.1 (citing N.Y. Dep't of Motor Vehicles,About the Salvage Vehicle ExaminationProgram,https://dmv.ny.gov/registration/about-salvage-vehicle-examination (last visited Oct. 25,2019)). Seeking to leverage the requirementsof the New York DMV Salvage Vehicle | motive and intent to obtain fraudulent titleconcealing that vehicle's salvage history.In that regard, the non-compliantairbags bear on the materiality of Pasternak'smisrepresentations of the vehicle's fraudulenttitle. The materiality of Pasternak's allegedmisstatements is an essential element of thecharges. See Dkt. 107 ("Gov't's Resp.") at 1-2; see also Neder v. United States, 527 U.S. 1,25, 119 S. Ct. 1827, 1841, 144 L. Ed. 2d 35(1999). To that end, a misstatement ismaterial if it "has a natural tendency toinfluence, or is capable of influencing, thedecision of the decisionmaker to which it wasaddressed." United States v. Weaver, 860F.3d 90, 94 (2d Cir. 2017) (quoting UnitedStates v. Corsey, 723 F.3d 366, 373 (2d Cir.2013)).At any rate, except by his own fiat,Pasternak makes no showing that evidence ofmissing or noncompliant air bags, which heacknowledged at argument was clearlyprobative under Rule 401, would be any more |
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| Examination, which make no expressreference to safety, he argues that evidence ofmissing airbags, which bears on the safety ofthe resold vehicles, would unduly inflame thejury's emotions and distract them from thetrue issues of the case. Id. at 2. | inflammatory or prejudicial than evidence ofany other missing part, including parts thatDMV, unlike airbags, treats as safety-related.Any prejudicial effect caused by the proffer ofthe airbag evidence, therefore, hardly rises tothe level contemplated by Rule 403, as suchevidence is not "'any more sensational ordisturbing' than the charged offenses."United States v. Barrett, 153 F. Supp. 3d 552,570 (E.D.N.Y. 2015) (quoting United Statesv. Reese, 933 F. Supp. 2d 579, 582 (S.D.N.Y.2013)).Having failed to show a prejudicialeffect that would substantially outweigh theprobative value of the evidence, Pasternak'smotion is denied. |
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| (B) Defendant moves to exclude anytestimony from government witness Michael | (B) Upon the government's representationthat it intends to elicit only general "rule-of- |
| Mulcahy, New York DMV Director ofCompliance, Vehicle Safety and Clean Air,relating to (1) the discussion of the "marketvalue" of the resold salvage vehicles, Def.'sMot. at 2, and (2) illegal vehicle salesschemes in general, including that low pricesoften incentivize quick purchase "withoutasking too many questions." Def.'s Reply at2. | thumb" testimony regarding salvage vehicles,Gov't's Resp. at 3, Pasternak has withdrawnhis first objection.The second objection, as did thewithdrawn objection, implicates Federal Ruleof Evidence 702, which permits an expertwitness to opine on matters within hisspecialized knowledge, training orexperience, and, as often expressed, onmatters beyond the ken of the average juror.United States v. Castillo, 924 F.2d 1227, 1232(2d Cir. 1991). Expert testimony can,consequently, provide context to assist thefact-finder with understanding the total importof the circumstances that might otherwise bemissed. United States v. Miller, No. 18-cr-202, 2018 WL 5729738 (E.D.N.Y. Nov. 2,2018). An expert may not, however, underthe guise of his expertise, bolster a factwitness's version of events as to matters notin dispute and commonly known orunderstood. United States v. Cruz, 981 F.2d659, 662-63 (2d Cir. 1992). |
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| Concerns about fact bolstering are atthe heart of Pasternak's second objection. Hedoes not object, though, to DirectorMulcahy's proffered testimony, on the basisof his professional experience, as to therelevant terms of art and the operation of thesalvage vehicle market in New York. In thislight, essentially, Pasternak's motion has beenmooted and is denied on that basis, but withleave to renew at trial should specificquestions put to Director Mulcahy straybeyond his expertise or into the arena of factbolstering. See Andrews v. Metro N.Commuter R.R., 882 F.2d 705, 708 (2d Cir.1989). | |
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| (C) Defendant seeks to admit evidence fromthe Kelley Blue Book as to the values of thevehicles he sold as a hearsay exception underFederal Rule of Evidence 803(17). Def.'sMot. at 3. | (C) The parties agree that Kelley Blue Bookinformation, which lists the typical purchaseprice of vehicles by type and condition,satisfies an exception to the hearsay rule. SeeDef.'s Mot. at 3; Gov't's Resp. at 3. Thegovernment, however, seeks to preclude suchevidence under a Rule 401 and 403 analysis,arguing that specific discussion of the |
| as to the admissibility of defendant's prior useof stickers to alter salvage titles. See Dkt. 103("Gov't's Mot.") at 3-5. It describes aprevious incident in 2009 in which defendantregistered a vehicle with the New York DMVafter concealing four "salvage" brands withbar code stickers. As a result, the Connecticutsalvage title he submitted appeared "clean."Id. at 3-4. After the DMV discovered thevehicle was a salvage, defendant purportedlydenied knowledge and claimed he hadpurchased the vehicle from a dealer in NewJersey, despite the sale history reflecting hepurchased it from a dealership he owned. Id.at 4. The government characterizes this pastact as "nearly identical" to the majority of thealterations charged in the SupersedingIndictment, which also involved his coveringsalvage history brands on vehicle titles with"official-looking bar code stickers." Id. Thegovernment argues evidence of this priorincident is highly relevant to defendant'sidentity, knowledge and intent. Id. | provided he reserve the right to object to itsform and scope. The government's motion,therefore, is granted to that extent, and subjectto Pasternak's right to object to suchtestimony on any other appropriate ground. |
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| (B) The government moves, pursuant toFederal Rules of Evidence 901(b)(2) and 701for a ruling on the admissibility of a DMVsenior investigator's identification ofPasternak's handwriting. Not seeking toqualify him as an expert witness, thegovernment proffers that the investigatorbecame familiar with Pasternak's handwritingover the course of his years-longinvestigation, and not, as Rule 901(b)(2)prohibits, for purposes of the currentlitigation. See Gov't's Mot. at 5-6. | (B) Pasternak objects only to the DMVinvestigator testifying that he became familiarwith Pasternak's handwriting over the courseof a "years-long" investigation, arguing thetime frame of the investigation risks unfairprejudice. Dkt. 108 ("Def.'s Resp.") at 1.The government has agreed it will notintroduce evidence as to the time frame of theinvestigation. Dkt. 110 ("Gov't's Reply") at1. Accordingly, the government's motion isgranted on the basis of that understanding. |
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| (C) Contending that neither victim reliancenor victim negligence is an element of or anaffirmative defense to fraud under federallaw, the government moves, as confusing andnonprobative, to preclude argument that "anyof [defendant's] victims should have knownof the vehicles' salvage history . . . or that anyvictims did not in fact rely on his fraudulentmisstatements." Gov't's Mot. at 7. | (C) The government is correct that the federalcriminal fraud statutes do not require relianceas an element. Weaver, 860 F.3d at 95.Testimony as to Pasternak's statements,misstatements, or omissions is clearlyrelevant and highly material, since they arefoundational to their "natural tendency toinfluence" the buyer. Id. at 94 (quotingUnited States v. Corsey, 723 F.3d 366, 373 |
| (2d Cir. 2013)). But, that is a far cry fromevidence or argument as to the specific impactsuch representations had on a specific victimof a fraudulent sale.Pared to the core the question iswhether, objectively, a reasonable buyerwould have considered misrepresentations ofa vehicle's salvage history an importantpurchase factor. See id. at 94, 96; UnitedStates v. Isola, 548 F. App'x 723, 725 (2d Cir.2013).Because testimony or argument aboutthe reliance (or lack thereof) of a specificbuyer of a specific Pasternak vehicle isirrelevant, highly prejudicial and likelyconfusing to the jury, the government'smotion is granted. Testimony, either on director cross, as to the specific impact ofPasternak's conduct on a specific purchaser,is precluded. | |
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| (D) The government moves to exclude anyevidence that defendant was sometimestruthful with his customers on the ground that | (D) In his response, Pasternak argues that itwas his "business practice to discuss his cars'salvage histories with buyers," such that |
| such evidence is not relevant to whether heotherwise engaged in fraud in the chargedoffenses. Id. at 9. | testimony to that effect is admissible underFederal Rule of Evidence 406. Dressed inbusiness attire, this is simply a repackaged"Willie Sutton regularly walked past bankswithout robbing them" argument. Not eventhe most generous reading of Rule 406 orcourts' interpretation of that Rule can comeclose to supporting Pasternak's position.However, Pasternak represented atoral argument that he may call certainpurchasers of vehicles whose titles thegovernment will proffer were fraudulent, andalso, as to almost all, fraudulently obtained, totestify that, notwithstanding the fraudulent orfraudulently obtained title, Pasternakdisclosed their salvage history prior to sale.Such testimony is admissible to rebut thecharge of fraud as to those vehicles. Cf.Neder, 527 U.S. at 24 (holding that adeception is an element of federal mail fraud).In short, such testimony would be offered toshow that, as to that sale, there was nodeception. |
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| Testimony by such purchasers ofspecific vehicles, the title of which thegovernment intends to introduce at trial,would be permissible. With respect to suchtestimony, the government's motion is deniedbut is otherwise granted. | |
| (E) The government moves to preclude thetestimony of defense witness Erica L.Eversman proffered as to the marketing ofsalvage and rebuilt vehicles, arguing that,even if she is qualified to testify as an expertin that field, her intended testimony is eitherirrelevant or is likely to confuse the jury andshould be excluded under a Rule 401-403analysis. Gov't's Mot. at 9-10. | (E) In essence, Pasternak seeks to call anexpert witness, as his counsel furtherexplained at oral argument, to put the nationalvehicle "title washing" industry on trial. Theexpert would do some sort of comparativeanalysis of vehicle title practices among thestates and demonstrate how used vehiclemarketers could legally leverage differencesamong the states to maximize the purchaseprice paid by the retail buyer. In the spotlightof her testimony would be title practicesregarding salvage or rebuilt vehicles.Although some of such testimony wouldlikely be relevant in this case, the vastmajority of the testimony as scoped out byPasternak would not.The title washing industry is not on |
| trial in this case. Nor is Eversman's opinionas to the various ways a used car marketercould leverage the title practice differencesamong the states legally relevant to the caseon trial here. All that is on trial is whetherPasternak engaged in a scheme tomisrepresent the title history of vehicles andthereby defraud retail purchasers.As previewed, the government intendsto offer proof that Pasternak joined aconspiracy which obtained fraudulent"rebuilt" vehicle titles in Indiana. It alsointends to prove that Pasternak then marketedthe vehicles with fraudulent Indiana title and,further, fraudulently obscured indicia on thefraudulent title indicating that the vehicle wasrebuilt, a term that would encompass vehiclesdefined as "salvage" in New York.Additionally, the government claims it willshow that, in at least one instance, Pasternakmarketed a vehicle with legitimately obtainedNew Jersey title with rebuilt indicia andaltered that indicia to obscure the fact that the |
| vehicle was a salvage vehicle. With thatunderstanding, the government is correct thatthe broad testimony of Eversman as to theconduct of the national title washing industrywould, to the extent relevant at all, bethoroughly confusing of the issues properlybefore the jury.The fraud the government charges islimited to the marketing of vehiclesrepossessed by insurance companiesfollowing an insurance loss, such as collisionor flood. Expert testimony as to how honesttitle could be obtained to market such vehiclesas road-ready would be helpful andadmissible under Rule 702. But, within theconfines of the counts charged in theindictment and the proof the governmentintends to offer, such expert testimony, to berelevant and non-confusing to the jury, wouldbe limited to the requirements of the states ofIndiana, New Jersey and New York. Just asthe government will be permitted to offerwitnesses with special expertise in this field |
| to testify in that regard, so too wouldPasternak be permitted to call Eversman ashis expert in the field to offer testimonylimited to this same subject area.Accordingly, to that extent, thegovernment's motion in limine restricting thetestimony of Eversman is granted. Of course,should the testimony stray into other areasopening the door to more expansive testimonyby Eversman, Pasternak may renew hisrequest at that time. But, at this time, experttestimony will be limited to the titling of"salvage" vehicles, that is, vehiclesrepossessed by insurance companies as totallosses, in the states of Indiana, New Jerseyand New York, and the manner in which suchvehicles could then be titled as road-ready inNew York. |
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Pasternak's argument, viewed holistically, is somewhat mystifying. He points out that, in New York, a vehicle without air bags will pass a safety inspection. Dkt. 109 ("Def.'s Reply") at 1 (citing N.Y. Comp. Codes R. & Regs. tit. 15, § 79.21). He offers the observation to establish that, because an absent or noncompliant air bag will cause a vehicle to flunk the salvage examination, its natural association with safety may carry a prejudicial effect that substantially outweighs its probative value. But, the observation establishes, at the same time, that the airbag is not regulated as a "safety" feature, much less one the absence of which would undermine a vehicle's road-worthiness.
But, defendant did concede at oral argument that, pursuant to Federal Rule of Evidence 608(b), he may not introduce the Kelley Blue Book as extrinsic evidence to impeach a witness about specific instances of his or her conduct in conjunction with the purchase.
The government's motion references Rule 902, but it is clear from context it grounds its motion in Rule 901.
So Ordered.
Dated: Brooklyn, New York
November 26, 2019
/s/ USDJ Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge