## Facts

- Leo E. Kingston, Jr. operated a real-estate investment business in the Oklahoma City area as the sole proprietor of Leo E. Kingston Investments.
- Some properties were financed through loans guaranteed by the Department of Housing and Urban Development (HUD) or the Veterans Administration (VA).
- Kingston and his wife formed E & S Investments, and the prosecution focused on Kingston’s acquisition of HUD/VA-backed financing and subsequent transfers of financed properties to E & S.
- A federal grand jury returned a fifteen-count indictment alleging a scheme involving conspiracy, false statements and concealment of material facts, mail fraud, and equity skimming tied to HUD/VA-insured properties.
- At trial, the government presented testimony from loan-default counselors who placed calls regarding delinquent loans connected to the charged transactions.
- In one sequence, a counselor called the number listed for E & S Investments, left a message, received a return call directing her to contact Kingston at another number, and then spoke with a man who identified himself as Kingston and discussed the default while refusing further details.
- Kingston objected that the telephone-conversation testimony was insufficiently authenticated and should not have been admitted against him.
- The jury found Kingston guilty on all counts.

## Issues

1. Whether the district court abused its discretion by admitting loan-default counselors’ testimony about telephone conversations as properly authenticated under Federal Rule of Evidence 901.
2. Whether convictions under 18 U.S.C. § 1001 for concealment of material facts required proof that Kingston had a legal duty to disclose the allegedly concealed information, and whether that requirement was met.
3. Whether other challenged evidentiary rulings and asserted trial errors, individually or cumulatively, warranted reversal.

## Decision

- The Tenth Circuit affirmed Kingston’s convictions on all counts.
- The court held the district court did not abuse its discretion in admitting the telephone-conversation evidence because the surrounding circumstances sufficiently supported a finding of authenticity under Rule 901.
- The court sustained the § 1001 concealment theory on the ground that concealment liability depends on a duty to disclose and the government’s proof supported that element in the context of HUD/VA program requirements.
- The court rejected Kingston’s remaining claims of evidentiary and trial error, finding no reversible prejudice.

## Legal Principles

- Evidence is authenticated under Fed. R. Evid. 901 when the proponent presents sufficient proof for a reasonable factfinder to conclude the item is what it is claimed to be; conclusive proof of identity is not required at the foundation stage.
- Telephone conversations may be authenticated through circumstantial evidence, including the number called, the return-call chain, the subject matter, the speaker’s self-identification, and contextual consistency with the alleged speaker’s role.
- Evidentiary rulings are reviewed for abuse of discretion; reversal requires a showing of prejudicial error.
- A concealment prosecution under 18 U.S.C. § 1001 requires a legal duty to disclose the material information allegedly concealed.

## Conclusion

The court upheld Kingston’s convictions arising from a HUD/VA-related real-estate scheme, ruling that circumstantial evidence adequately authenticated telephone-call testimony under Rule 901 and that § 1001 concealment liability depends on, and was supported by, a duty to disclose.


United States v. Kingston, 971 F.2d 481 (10th Cir. 1992)