U.S. v. Siddiqui

• Decision Date: 15 December 2000
• Docket Number: No. 98-6994,98-6994
• Parties: (11th Cir. 2000) UNITED STATES of America, Plaintiff-Appellee, v. Mohamed SIDDIQUI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1318

235 F.3d 1318 (11th Cir. 2000)

UNITED STATES of America, Plaintiff-Appellee, v. Mohamed SIDDIQUI, Defendant-Appellant.

No. 98-6994.

United States Court of Appeals, Eleventh Circuit.

December 15, 2000.

December 29, 2000

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Alabama, No. 97-00085-CR-1), Richard W. Vollmer, Judge.

Before COX and HULL, Circuit Judges, and GEORGE^*, District Judge.

GEORGE, District Judge:

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 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.

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-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.

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 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, 111 S.Ct. 159, 112 L.Ed.2d 125 (1990). We review the district court's authorization of 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, 112 S.Ct. 151, 116 L.Ed.2d 117 (1991), and cert. denied sub nom., Sawyer v. United States, 502 U.S. 890, 112 S.Ct. 253, 116 L.Ed.2d 207 (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 States v. Munoz, 16 F.3d 1116, 1120-21 (11th Cir.), cert. denied sub nom., Rodriguez v. United States, 513 U.S. 852, 115 S.Ct. 153, 130 L.Ed.2d 92 (1994).

In this case, a number of factors support the authenticity of...