[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_______________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DEC 15, 2000
No. 98-6994 THOMAS K. KAHN
_______________________ CLERK
D.C. Docket No. 97-00085-CR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MOHAMED SIDDIQUI,
Defendant-Appellant.
______________________
Appeal from the United States District Court
for the Southern District of Alabama
______________________
(December 15, 2000)
Before COX and HULL, Circuit Judges and GEORGE*, District Judge.
GEORGE, District Judge:
* Honorable Lloyd D. George, District Judge for the District of Nevada,
sitting by designation.
Mohamed Siddiqui appeals his convictions for fraud and false statements
to a federal agency, and obstruction in connection with a federal investigation.
Siddiqui challenges the district court’s admission into evidence of e-mail and
foreign depositions.
I. Background
The National Science Foundation (“NSF”) is a congressionally established
federal agency. The NSF presents the Waterman Award annually to an
outstanding scientist or engineer, and consists of a $500,000 research grant. To
become eligible for the Waterman Award, candidates are nominated by a
nominator who completes and submits a form to the NSF, and recruits four
outside references to support the candidate. The nominator identifies the
references on the form, and sends forms to the references for letters to be
submitted on behalf of the nominee.
On December 15, 1996, Susan Fannoney, Executive Secretary of the
Waterman Award, received a form indicating that Dr. Hamuri Yamada was
nominating Mohamed Siddiqui, an Indian citizen, and at that time a visiting
professor at the University of South Alabama, for the award. The nomination
form listed three references, Dr. von Gunten, James Westrick and Dr. Mysore.
Along with the nomination form, Ms. Fannoney received a reference form
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apparently signed by von Gunten, recommending Siddiqui for the Waterman
Award. In addition, Fannoney received by fax a letter of reference from James
Westrick.
On January 14, 1997, Fannoney received a letter from von Gunten
addressed to the Waterman Awards Committee. The letter stated that von Gunten
had received confirmation for a letter of recommendation in support of Siddiqui,
but that he had never sent such a letter. Fannoney alerted the Inspector General’s
office, which began an investigation. On February 7, 1997, Fannoney received a
fax from Siddiqui stating that he was withdrawing his name from consideration
for the award.
On February 18, 1997, Jodi Saltzman, a special agent with the NSF
interviewed Siddiqui at Siddiqui’s office at the University of South Alabama.
During the interview, Siddiqui signed a statement admitting that he had
nominated himself for the Waterman Award, but that he had permission from
Yamada and von Gunten to submit forms on their behalf. Siddiqui also
acknowledged in the statement that Westrick had recommended Siddiqui for a
different award, the PECASE Award, but that Siddiqui had changed the wording
of the letter to apply to the Waterman Award. Siddiqui was indicted on April 29,
1997.
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Before trial, the government moved the court to allow the taking of the
depositions of Yamada, who resided in Japan, and von Gunten, who resided in
Switzerland. In support of the motion, the government provided Agent
Saltzman’s affidavit indicating that von Gunten had stated outright that he would
not come to the United States to testify, and that Yamada would not be able to
testify in the United States because of conflicts with personal commitments.
Siddiqui opposed the taking of the depositions on the grounds that the
witnesses’ personal presence at trial was necessary, and that Indian travel
restrictions for its citizens residing abroad prevented him from traveling to Japan
and Switzerland. Specifically, Siddiqui asserted that because of religious
persecution in India his travel to Japan or Switzerland related to the criminal
action would put his family members still living in India at risk. The magistrate
judge ruled that the government had carried its burden of showing that Yamada
and von Gunten would be unavailable to appear at trial, and instructed that
Siddiqui’s fear of obtaining a travel visa from India because of the threat of
persecution of family members should not preclude the taking of the foreign
depositions.
Yamada’s deposition was taken in Japan on March 6, 1998. At
government expense, Siddiqui’s counsel attended the deposition and cross-
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examined the witness, but was not in telephonic contact with Siddiqui during the
deposition. Yamada testified that on February 1, 1997, she received an e-mail
stating that if she received a phone call from the NSF to “please tell good words
about me.” Yamada testified that she knew the e-mail was from Siddiqui because
the name on the e-mail had Siddiqui’s sender address, and it ended with the name
“Mo” which Siddiqui had previously told her was his nickname, and which he
had used in previous e-mail.
Yamada further testified that she never signed or submitted a Waterman
Award form on behalf of Siddiqui, nor had she given Siddiqui permission to sign
her name to the form. On February 22, 1997, Yamada received another e-mail
from Siddiqui requesting that she prepare a letter indicating that she had
permitted Siddiqui to sign the nomination form on her behalf. Yamada testified
that during that time period Siddiqui had also contacted her by phone making the
same request, and that she recognized his voice. On February 28, 1997, Yamada
sent an e-mail to Agent Saltzman stating that she had permitted Siddiqui to sign
on her behalf. Yamada later admitted to Saltzman that she had not given Siddiqui
permission to sign, but had made the earlier representation because she thought
Siddiqui would go to jail.
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During cross-examination of Yamada at the deposition, Siddiqui’s counsel
introduced an e-mail from Yamada to Siddiqui. This e-mail contained the same
e-mail address for Siddiqui as the e-mail received by Yamada and von Gunten
apparently from Siddiqui.
Von Gunten’s video deposition was taken in Switzerland. At government
expense, Siddiqui’s counsel attended the deposition and cross-examined von
Gunten. During the deposition, Siddiqui was in communication with his counsel
by telephone. Von Gunten testified at the deposition that he had not submitted a
letter of recommendation in favor of Siddiqui for the Waterman Award, and that
he had not given Siddiqui permission to submit such a letter in his name.
Von Gunten further testified that on February 24, 1997, he received an e-
mail from what appeared to be Siddiqui’s e-mail address asking him to tell the
NSF that Siddiqui had permission to use von Gunten’s name. Von Gunten
replied by e-mail to the address that he could not tell the NSF anything but the
truth. Von Gunten also testified that during the same time period as the exchange
of e-mail he spoke with Siddiqui by phone two or three times. In those
conversations, in which Siddiqui identified himself and von Gunten recognized
his voice, Siddiqui urged von Gunten to change the statements that he had made
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to the NSF that Siddiqui did not have permission to use von Gunten’s name. Von
Gunten refused those requests.
During trial, the district court allowed the depositions to be read into
evidence, and admitted the e-mail into evidence.
II. Discussion
Siddiqui assigns four errors to the proceedings below. He claims that the
district court abused its discretion by allowing the government to offer the e-mail
into evidence without proper authentication, and over Siddiqui’s hearsay
objections. Siddiqui further claims that the district court erred by admitting
Yamada’s and von Gunten’s depositions because Siddiqui was not present at the
depositions, and because the court did not insure that Siddiqui be allowed to enter
Japan and Switzerland to attend the depositions. Finally, Siddiqui claims that the
district court erred by admitting Yamada’s and von Gunten’s depositions without
a showing that the deponents were unavailable for trial.
We review the district court’s authentication rulings for abuse of
discretion. United States v. Mendez, 117 F.3d 480, 484 (11th Cir. 1997). In the
absence of a contemporaneous objection, hearsay claims are reviewed under the
plain error doctrine. United States v. Hernandez, 896 F.2d 513, 523 (11th Cir.),
cert. denied, 498 U.S. 858 (1990). We review the district court’s authorization of
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foreign depositions for abuse of discretion, United States v. Drogoul, 1 F.3d
1546, 1552 (11th Cir. 1993), and give plenary review to claims of constitutional
error for a failure to show the unavailability of an out-of-court declarant. United
States v. McKeeve, 131 F.3d 1, 7 (1st Cir. 1997).
A. Authentication of the E-mail
Under Fed.R.Evid. 901(a), documents must be properly authenticated as a
condition precedent to their admissibility “by evidence sufficient to support a
finding that the matter in question is what its proponent claims.” A document
may be authenticated by “[a]ppearance, contents, substance, internal patterns, or
other distinctive characteristics, taken in conjunction with circumstances.”
Fed.R.Evid. 901(b)(4); United States v. Smith, 918 F.2d 1501, 1510 (11th Cir.
1990) (“[t]he government may authenticate a document solely through the use of
circumstantial evidence, including the document’s own distinctive characteristics
and the circumstances surrounding its discovery”), cert. denied sub nom., Hicks
v. United States, 502 U.S. 849 (1991), and cert. denied sub nom., Sawyer v.
United States, 502 U.S. 890 (1991). A district court has discretion to determine
authenticity, and that determination should not be disturbed on appeal absent a
showing that there is no competent evidence in the record to support it. United
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States v. Munoz, 16 F.3d 1116, 1120-21 (11th Cir.), cert. denied sub nom.,
Rodriguez v. United States, 513 U.S. 852 (1994).
In this case, a number of factors support the authenticity of the e-mail. The
e-mail sent to Yamada and von Gunten each bore Siddiqui’s e-mail address
“msiddiquo@jajuar1.usouthal.edu” at the University of South Alabama. This
address was the same as the e-mail sent to Siddiqui from Yamada as introduced
by Siddiqui’s counsel in his deposition cross-examination of Yamada. Von
Gunten testified that when he replied to the e-mail apparently sent by Siddiqui,
the “reply-function” on von Gunten’s e-mail system automatically dialed
Siddiqui’s e-mail address as the sender.
The context of the e-mail sent to Yamada and von Gunten shows the author
of the e-mail to have been someone who would have known the very details of
Siddiqui’s conduct with respect to the Waterman Award and the NSF’s
subsequent investigation. In addition, in one e-mail sent to von Gunten, the
author makes apologies for cutting short his visit to EAWAG, the Swiss Federal
Institute for Environmental Science and Technology. In his deposition, von
Gunten testified that in 1994 Siddiqui had gone to Switzerland to begin a
collaboration with EAWAG for three or four months, but had left after only three
weeks to take a teaching job.
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Moreover, the e-mail sent to Yamada and von Gunten referred to the
author as “Mo.” Both Yamada and von Gunten recognized this as Siddiqui’s
nickname. Finally, both Yamada and von Gunten testified that they spoke by
phone with Siddiqui soon after the receipt of the e-mail, and that Siddiqui made
the same requests that had been made in the e-mail. Considering these
circumstances, the district court did not abuse its discretion in ruling that the
documents were adequately authenticated.
B. Hearsay Challenge to Admission of the E-mail
Siddiqui argues that the e-mail addressed to Yamada and von Gunten was
erroneously allowed into evidence over hearsay objections. The government
responds that Siddiqui posed no hearsay objections to the e-mail, and the issue
therefore should be reviewed for plain error. In the portions of the record
identified by Siddiqui as hearsay objections to the e-mail (R4-39, 174, R5-266),
Siddiqui’s counsel objects based on the government’s failure to show with
reliability who sent the e-mail. Because these objections go to authentication,
and are not hearsay objections, Siddiqui’s assignment of error lacks merit.
Even if Siddiqui had preserved hearsay objections to the introduction of
the e-mail, however, the district court would have been within its discretion in
denying the objections. The e-mail was properly authenticated. Those sent by
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Siddiqui constitute admissions of a party pursuant to Fed.R.Evid. 801(d)(2)(A),
and those between Siddiqui and Yamada unrelated to the NSF investigation are
non-hearsay admitted to show Siddiqui’s and Yamada’s relationship and custom
of communicating by e-mail.
C. Admission of Foreign Depositions
Siddiqui argues that the admission of Yamada’s and von Gunten’s
depositions taken outside of Siddiqui’s presence violated the confrontation clause
of the Sixth Amendment. Specifically, Siddiqui contends that the government
failed to make a diligent effort to ensure Siddiqui’s attendance at the depositions,
and did not provide Siddiqui with the opportunity to confer with his attorney
during the Yamada deposition.
Depositions, particularly those taken in foreign countries, are generally
disfavored in criminal cases. United States v. Mueller, 74 F.3d 1152, 1156 (11th
Cir. 1996). Nevertheless, depositions are authorized “when doing so is necessary
to achieve justice and may be done consistent with the defendant’s constitutional
rights.” Id. See Fed.R.Crim.P. 15.
In this case, the magistrate judge ruled that Siddiqui had the choice of
attending the depositions at the risk of possibly placing his family in jeopardy in
India, or waiving his confrontation right and allowing the depositions to be
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attended by his attorney. Siddiqui made no request of the magistrate judge or the
government to assist him in removing barriers so that he could attend the
depositions, which suggests that Siddiqui made a calculated decision not to alert
Indian authorities by seeking to lift travel restrictions. Indeed, in the face of the
possible threat to Siddiqui’s family, it would have been improvident for the
government to proceed on international fronts absent Siddiqui’s express consent.
After failing to authorize the government to proceed on his behalf, Siddiqui
cannot now claim that his confrontation rights were violated by the government’s
failure to act unilaterally.
Siddiqui’s counsel attended Yamada’s and von Gunten’s depositions at
government expense. In each deposition, oaths were administered to the
witnesses, counsel had an unlimited opportunity for direct and cross examination,
objections were made and preserved for trial, a judicial officer presided, and
transcripts were provided. Siddiqui was in contact by telephone with counsel
during the von Gunten deposition. Except for the lack of telephone contact with
counsel during the Yamada deposition, Siddiqui does not challenge any other
aspect of the manner of the taking of the depositions, nor does he suggest that the
law of the host countries was violated in any respect.
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The Eleventh Circuit has recognized the approval of foreign depositions
even “where the proceeding was in a foreign language and conducted by a
judicial officer rather than counsel.” Mueller, at 1157 (citing United States v.
Salim, 855 F.2d 944, 954-55 (2d Cir. 1988)). In the absence of any indication
that the manner of the Yamada examination was so incompatible with principles
of fairness or prone to inaccuracies or bias as to render the testimony inherently
unreliable, see Salim, 855 F.2d at 953, and in view of Siddiqui’s decision not to
pursue attending the deposition, the lack of telephone contact between Siddiqui
and his lawyer during the deposition does not amount to a violation of the
confrontation clause.
D. Unavailability of Yamada and von Gunten
Siddiqui argues that his Sixth Amendment confrontation rights were
violated when the district court found that Yamada and von Gunten were
unavailable to testify at trial before admitting their depositions. The standard for
unavailability is whether the witness’ attendance could be procured “by process
or other reasonable means.” Fed.R.Evid. 804(a)(5). In criminal cases, the Sixth
Amendment requires the government to show (1) that the out-of-court declarant
is unavailable to testify despite its good faith efforts to obtain his presence at
trial, and (2) that the out-of-court statements bear sufficient indicia of reliability
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to provide the jury with an adequate basis for evaluating their truth. United
States v. Chapman, 866 F.2d 1326, 1330 (11th Cir.), cert. denied, 493 U.S. 932
(1989). The lengths to which the government must go to produce a witness is a
matter of reasonableness. Ohio v. Roberts, 448 U.S. 56, 74 (1980).
During his deposition, von Gunten unequivocally stated that it would be
impossible for him to travel to the United States for the trial. On May 11, 1998,
the government faxed a letter to von Gunten explaining that the case against
Siddiqui would be much stronger if he could attend the trial, and that it would
pay von Gunten’s expenses to attend the trial. On May 13, 1998, von Gunten
sent a fax to the government confirming that he would not be able to testify at the
trial. The government, therefore, has shown that von Gunten was unavailable to
testify despite the government’s good faith efforts to obtain his presence at trial.
As to Yamada, the government points out that the district court had before
it the affidavit of the NSF agent Saltzman, who stated her belief that, based on
both Yamada’s numerous reasons given for not traveling to the United States to
testify, she would not testify at trial regardless of when it was scheduled. The
government also submits that when pressed for a definite answer to whether she
would attend the trial, Yamada stated, “I don’t want to go, if possible.” On May
11, 1998, the government faxed to Yamada the same message that it sent to von
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Gunten, urging Yamada’s attendance at trial beginning on May 14, 1998. On
May 15, 1998, the government received an overnight mail response from the
center where Yamada worked indicating that Yamada would be away from her
office and unavailable to testify.
Siddiqui responds that Yamada’s testimony was at least equivocal, and that
Yamada several times expressed a willingness to attend trial. For instance,
moments before Yamada stated that she stated that she did not want to attend
trial, she also conveyed that she was annoyed by the case, and that she would
attend, if necessary, in order to have it finished. Siddiqui further argues that the
overnight mail response from the center regarding Yamada’s unavailability was
dated May 18, 1998, and that her testimony was needed on May 15, 1998.
We find that the government made an adequate showing of Yamada’s
unavailability. Yamada was initially indefinite during her deposition about
whether her schedule would permit her to attend trial and whether the university
would give her permission, but her last word on the matter was “I don’t want to
go, if possible.” This was in direct response to the government’s request that
Yamada state whether she would attend trial or not. Moreover, Yamada did not
indicate a change of mind even after the government sent the May 11, 1998, fax
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urging Yamada’s trial attendance. Under such circumstances, the government
would not reasonably be expected to have done more.
We also conclude that the out-of-court statements bear sufficient indicia of
reliability to provide the jury with an adequate basis for evaluating their truth. As
previously stated, Yamada and von Gunten were administered oaths in their
depositions, counsel had an unlimited opportunity for direct and cross
examination, objections were made and preserved for trial, a judicial officer
presided, and transcripts were provided.
AFFIRMED.
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