U.S. v. Safavian, Criminal No. 05-0370 (PLF).

• Decision Date: 23 May 2006
• Docket Number: Criminal No. 05-0370 (PLF).
• Citation: 435 F.Supp.2d 36
• Parties: UNITED STATES of America, v. David Hossein SAFAVIAN, Defendant.
• Court: U.S. District Court — District of Columbia

435 F.Supp.2d 36

UNITED STATES of America, v. David Hossein SAFAVIAN, Defendant.

Criminal No. 05-0370 (PLF).

United States District Court, District of Columbia.

May 23, 2006.

COPYRIGHT MATERIAL OMITTED

Nathaniel B. Edmonds, U.S. Department of Justice, Criminal Division, Fraud Section, Peter Robert Zeidenberg, U.S. Department of Justice, Washington, DC, for Plaintiff.

OPINION AND ORDER

PAUL L. FRIEDMAN, District Judge.

This matter is before the Court on: (1) defendant's motion in limine to deny the government's Rule 902(11) certifications; (2) the government's motion in limine for pretrial determination of admissibility of certain evidence and the supplement to that motion; and (3) defendant's motion in limine to exclude hearsay and irrelevant evidence. These motions all make arguments regarding the admissibility of approximately 260 e-mails that the government seeks to admit in its case against the defendant.

On May 19, 2006, this Court entered an Amended Minute Order stating which of the e-mails would be: (1) provisionally admitted in part or in whole for the truth of the matters asserted therein, either as (a) admissions of the defendant under Rule 801(d)(2)(A) of the Federal Rules of Evidence and/or (b) adoptive admissions of the defendant under Rule 801(d)(2)(B); (2) provisionally admitted in part or in whole but not for the truth of the matters asserted therein; (3) provisionally excluded because the Court rejects the government's theory of admission under the co-conspirator hearsay exception set forth in Rule 801(d)(2)(E) (unless certain witnesses with personal knowledge of those e-mails testify); and (4) provisionally excluded for other reasons. This Opinion and Order supplement and explain that Amended Minute Order.

A. Authentication of E-mails

Authentication is an aspect of relevancy. Advisory Committee Note, FED. R.EVID. 901(a) (citations omitted); 31 WRIGHT & GOLD, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 7102 at 13 (2000). "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." FED.R.EVID. 901(a). See 5 SALTZBURG, MARTIN & CAPRA, FEDERAL RULES OF EVIDENCE MANUAL § 901.02[1] at 901-5 (8th ed.2002). The threshold for the Court's determination of authenticity is not high. See, e.g., United States v. Reilly, 33 F.3d 1396, 1404 (3d Cir.1994) ("the burden of proof for authentication is slight"); United States v. Holmquist, 36 F.3d 154, 168 (1st Cir.1994) ("the standard for authentication, and hence for admissibility, is one of reasonable likelihood"); United States v. Coohey, 11 F.3d 97, 99 (8th Cir.1993) ("the proponent need only demonstrate a rational basis for its claim that the evidence is what the proponent asserts it to be"). The question for the Court under Rule 901 is whether the proponent of the evidence has "offered a foundation from which the jury could reasonably find that the evidence is what the proponent says it is." 5 FEDERAL RULES OF EVIDENCE MANUAL § 901.02[1] at 901-5-901-6. The Court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do SO. See 31 FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 7102 at 16.

1. Rule 902(11)

Rule 902 of the Federal Rules of Evidence lists those documents that are self-authenticating — that is, those that do not require extrinsic evidence of authenticity as a condition precedent to admissibility. Rule 902(11) is intended to set forth "a procedure by which parties can authenticate certain records of regularly conducted activity, other than through the testimony of a foundation witness." Advisory Committee Note, FED.R.EVID. 902. Similarly, the Advisory Committee Notes to Rule 803 state that Rule 902(11) "provides that the foundation requirements of Rule 803(6) can be satisfied under certain circumstances without The expense and inconvenience of producing time-consuming foundation witnesses." Advisory Committee Note, FED.R.EVID. 803. These comments to each Rule make clear that they were intended to go "hand in hand." Rambus, Inc. v. Infineon Technologies AG, 348 F.Supp.2d 698, 701 (E.D.Va.2004) ("Rule 902(11) is ... the functional equivalent of testimony offered to authenticate a business record tendered under Rule 803(6)").

Pursuant to Rule 902(11), the government submitted a certification from Jay Nogle, the official custodian of records for Greenberg Traurig, LLP, the law firm that once employed Jack Abramoff. Mr. Nogle stated that in his capacity as official custodian he could certify that 467,747 e-mails had been produced by Greenberg Traurig to the United States and that those e-mails comport with the requirements of Rule 902(11), in part because the e-mails "would be admissible under Fed.R.Evid. 803(6) if accompanied by a written declaration of [their] custodian or other qualified person." The government does not, however, seek to admit these e-mails pursuant to the business records exception to the hearsay rule in Rule 803(6), but offers other hearsay exceptions and non-hearsay arguments (discussed later in this Opinion) as bases for admission. The defendant objects to the authentication of the Greenberg Traurig e-mails pursuant to Mr. Nogle's Rule 902(11) certification.¹ Because Rule 902(11) was intended as a means of authenticating only that evidence which is being offered under the business records exception to the hearsay rule, the Court will not accept the proffered Rule 902(11) certification of Mr. Nogle with reference to the Greenberg Traurig e-mail exhibits.

2. Rule 901

Because it is not appropriate for these e-mails to be admitted as self-authenticating under Rule 902 of the Federal Rules of Evidence, the Court turns to the authentication requirements set forth in Rule 901. The question under Rule 901 is whether there is sufficient evidence "to support a finding that the matter in question is what its proponent claims," FED. R.EVID. 901(a) — in this case, e-mails between Mr. Safavian, Mr. Abramoff, and other individuals. As noted, the Court need not find that the e-mails are necessarily what the proponent claims, only that there is evidence sufficient for the jury to make such a finding. See 5 FEDERAL RULES OF EVIDENCE MANUAL § 901.02[1] at 901-5-901-6 (8th ed.2002); id. at 901-14 ("Evidence is sufficient for authentication purposes if the foundation for particular evidence warrants the trier of fact in finding that it is what the proponent claims."). Rule 901(b) sets forth illustrations of how evidence may be authenticated or identified it emphasizes, however, that these are "illustration(s) only" and are not intended to be the only methods by which the Court may determine that the e-mails are what the government says they are. See United States v. Dean, 989 F.2d 1205, 1210 n. 7 (D.C.Cir.1993) ("The rule contains an illustrative, but not exhaustive, list of suggested methods of identification.").² For the reasons that follow, the Court finds that there is ample evidence for the jury to find that these exhibits are, in fact, e-mail exchanges between Mr. Safavian, Mr. Abramoff, and other individuals.

One method of authentication identified under Rule 901 is to examine the evidence's "distinctive characteristics and the like," including "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." FED.R.EVID. 901(b)(4). Most of the proffered exhibits can be authenticated in this manner. The e-mails in question have many distinctive characteristics, including the actual e-mail addresses containing the "@" symbol, widely known to be part of an e-mail address, and certainly a distinctive mark that identifies the document in question as an e-mail. See United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir.2000). In addition, most of the e-mail addresses themselves contain the name of the person connected to the address, such as "abramoffj@gtlaw.com," "David.Safavian@ mail.house.gov," or "david.safavian @gsa.gov." See, e.g., Exhibits 101, 105, 106. Frequently these e-mails contain the name of the sender or recipient in the bodies of the e-mail, in the signature blocks at the end of the e-mail, in the "To:" and "From:" headings, and by signature of the sender. The contents of the emails also authenticate them as being from the purported sender and to the purported recipient, containing as they do discussions of various identifiable matters, such as Mr. Safavian's work at the General Services Administration ("GSA"), Mr. Abramoff' s work as a lobbyist, Mr. Abramoff' s restaurant, Signatures, and various other personal and professional matters.³

Those e-mails that are not clearly identifiable on their own can be authenticated under Rule 901(b)(3), which states that such evidence may be authenticated by comparison by the trier of fact (the jury) with "specimens which have been [otherwise] authenticated" — in this case, those e-mails that already have been independently authenticated under Rule 901(b)(4). For instance, certain e-mails contain the address "MerrittDC@aol.com" with no further indication of what person uses that e-mail address either through the contents or in the e-mail heading itself. See, e.g., Exhibit 134. This e-mail address on its own does not clearly demonstrate who was the sender or receiver using that address. When these e-mails are examined alongside Exhibit 100 (which the Court finds is authenticated under Rule 901(b)(4) by its distinctive characteristics), however, it becomes clear that MerrittDC@aol.com was an address used by the defendant. Exhibit 100 is also an e-mail sent from that address, but the signature within the email gives the defendant's name and the name of his business, Janus-Merritt Strategies, L.L.C., located in Washington, D.C (as well as other information, such as the...