United States v. Siddiqui ( 2000 )

UNITED STATES of America, Plaintiff-Appellee,
v.
Mohamed SIDDIQUI, Defendant-Appellant.
No. 98-6994.
United States Court of Appeals,
Eleventh Circuit.
Dec. 15, 2000.
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
*
Honorable Lloyd D. George, District Judge for the District of Nevada, sitting by designation.
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 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.
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 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 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.
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 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, 110 S.Ct. 321, 107 L.Ed.2d 312 (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,
100 S.Ct. 2531, 65 L.Ed.2d 597 (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 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 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 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.