United States v. Siddiqui

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 15, 2000
• Docket: 98-6994
• Status: Published

Opinion

[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

2 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.

3 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-

4 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.

5 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

6 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

7 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

8 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.

9 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

10 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

11 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.

12 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

13 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

14 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

15 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.