Public corruption case highlights issues in authenticating and admitting e-mails, in United States v. Safavian, 435 F.Supp.2d 36 (D.D.C. 2006), rev’d on other grounds, 528 F.3d 957 (D.C. Cir. 2008)
An interesting case involving the admissibility of e-mails occurred in the political corruption prosecution of the General Services Administration’s (GSA) deputy chief of staff. As previously noted, the conviction was overturned on appeal on other grounds involving expert evidence, but there was no challenge on appeal to the trial court’s admission of the e-mail evidence. The trial court’s ruling demonstrates how to address authentication and hearsay issues for e-mail evidence.
As background in the case, defendant Safavian served as the General Services Administration’s (GSA) deputy chief of staff. His friend and lobbyist Jack Abramoff contacted him concerning two properties controlled by the federal government. Around the same time that the defendant provided internal and other information to the lobbyist and arranged a meeting, the lobbyist invited the defendant on a golf trip to Scotland and London along with a congressman, congressional staff, and others. Before going on the trip, the defendant requested an ethics opinion from the GSA general counsel on whether he could receive complimentary air transportation (a private chartered jet) as a gift from his friend, the lobbyist. The ethics officer approved the trip with the understanding that neither the lobbyist “nor his firm does business with or is seeking to do business with GSA.” Safavian, 528 F.3d at 966. The defendant provided a copy of a check for $3,100 which he gave the lobbyist to cover costs during the trip. Questions arose whether the $3,100 was sufficient to cover the true costs of the trip. The defendant was interviewed twice concerning the trip by an agent. After further investigation, defendant Safavian was charged with three counts of concealing and providing false statements to the agent and in requesting an ethics opinion and two obstruction counts based on his response to the Senate Committee.
The e-mail evidence of the communications between the defendant and the lobbyist were important in the case. Before trial, the government sought a provisional ruling concerning the admissibility of about 260 e-mails. The government intended to call an FBI agent to read the e-mails at trial. It did not intend to call recipients of the e-mails, including lobbyist Jack Abramoff.
Authentication Of E-mails
The first issue confronted by the court was the authentication of the e-mails. The government had submitted a business record certification from the law firm of lobbyist Jack Abramoff that 467,747 e-mails had been produced to the government, under the self-authentication requirements of FRE 902(11). The trial court ruled that since the e-mails were not being introduced as business records under FRE 803(6), the certification requirements of FRE 902(11) were inapplicable to authenticate the e-mails. See Safavian, 435 F.Supp.2d at 39 (“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 [custodian] Mr. Nogle with reference to the [law firm] Greenberg Traurig e-mail exhibits.”). The e-mails were authenticated on other grounds.
FRE 901(b)(4): Distinctive Characteristics And The Like
First, under FRE 901(b)(4), many of the e-mails could be authenticated based on their “distinctive characteristics and the like,” including “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” As the district court explained:
“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. In addition, most of the e-mail addresses themselves contain the name of the person connected to the address, such as ‘email@example.com,’ ‘David.Safavian@mail.house.gov,’ or ‘firstname.lastname@example.org.’ 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 e-mails 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.” See Safavian, 435 F.Supp.2d at 40 (citations and footnote omitted).
FRE 901(b)(4): Comparison By Trier Or Expert Witness:
Other e-mails were authenticated under FRE 901(b)(3), allowing the trier of fact (the jury) to compare “‘specimens which have been [otherwise] authenticated’ -- in this case, those e-mails that already have been independently authenticated under Rule 901(b)(4).” Safavian, 435 F.Supp.2d at 40 (citations omitted). For example, authenticated e-mails using the defendant’s e-mail address “MerrittDC@aol.com” bearing the defendant’s signature, the name of his business, business’ address, telephone and fax numbers could be used to authenticate other e-mails from “MerrittDC@aol.com”.
FRE 901(b)(1): Testimony Of Witness With Knowledge
Because the government elected not to call lobbyist Jack Abramoff at trial, the e-mails could not be authenticated under FRE 901(b)(1) by the testimony of a witness with knowledge about the e-mail.
Trustworthiness Concerns Not Demonstrated
The court rejected the defense argument that the e-mails were not trustworthy since many e-mails were “embedded within e-mails as having been forwarded to or by others or as the previous e-mail to which a reply was sent.” Safavian, 435 F.Supp.2d at 41. As the court explained:
The defendant’s argument is more appropriately directed to the weight the jury should give the evidence, not to its authenticity. While the defendant is correct that earlier e-mails that are included in a chain — either as ones that have been forwarded or to which another has replied — may be altered, this trait is not specific to e-mail evidence. It can be true of any piece of documentary evidence, such as a letter, a contract or an invoice. Indeed, fraud trials frequently center on altered paper documentation, which, through the use of techniques such as photocopies, white-out, or wholesale forgery, easily can be altered. The possibility of alteration does not and cannot be the basis for excluding e-mails as unidentified or unauthenticated as a matter of course, any more than it can be the rationale for excluding paper documents (and copies of those documents). We live in an age of technology and computer use where e-mail communication now is a normal and frequent fact for the majority of this nation’s population, and is of particular importance in the professional world. The defendant is free to raise this issue with the jury and put on evidence that e-mails are capable of being altered before they are passed on. Absent specific evidence showing alteration, however, the Court will not exclude any embedded e-mails because of the mere possibility that it can be done.”Safavian, 435 F.Supp.2d at 41.
Admissibility Of E-mailsSince the e-mails were authenticated, the trial court considered the admissibility of the e-mails. The court had asked the government to provide an initial “chart listing each e-mail by exhibit number and indicating which theory or theories the government offers for the admission of each exhibit. The defendant submitted an opposition to this chart and the government submitted a reply.” Safavian, 435 F.Supp.2d at 43. The trial court included a table at the end of its opinion which set forth the basis for admitting or excluding each e-mail.
FRE 801(d)(2): Party Admissions
A number of e-mails could be introduced against the defendant as admission of a party-opponent, under FRE 801(d)(2)(A). On other e-mails, “The context and content of certain e-mails demonstrate clearly that Mr. Safavian ‘manifested an adoption or belief’ in the truth of the statements of other people as he forwarded their e-mails,” under FRE 801(d)(2)(B).
FRE 803(3): Then Existing Mental, Emotional, or Physical Condition
Other e-mails were “admissible under Rule 803(3) to show Mr. Safavian’s state of mind at the time he received them or at some later time.” Safavian, 435 F.Supp.2d at 45.
Some e-mails were admissible for the non-hearsay purpose “to show that ‘work’ or ‘business’ was being conducted.” These emails were not introduced for the truth of their contents. As the court explained:
“In this case, the lobbying ‘work’ or business that Mr. Abramoff engaged in included sending e-mails to Mr. Safavian seeking assistance and favors. In many of the e-mails, Mr. Abramoff asks questions without asserting the truth of any matters. Other e-mails contain imperative statements instructing Mr. Safavian on how to provide assistance and similarly are offered not for the truth of the matters therein (and also constitute Mr. Abramoff’s further efforts to receive help from Mr. Safavian in his work). An example of an exhibit that contains both a request and an imperative from Mr. Abramoff is an October 1, 2002 e-mail in which Mr. Abramoff wrote to Mr. Safavian, ‘Let’s do a meal so we can start getting some of these business ideas for GSA moving. What’s good for you?’ Still other e-mails contain information along with explicit or implicit requests for assistance. Those requests (with the factual context provided in some) constitute the non-hearsay ‘work.’”
Safavian, 435 F.Supp.2d at 44-45 (citations omitted).
Other e-mails were admitted as non-hearsay to:
“explain Mr. Safavian’s motive and intent at the time he undertook certain actions or, arguably, when he made his representations during the investigations by the GSA’s Office of Inspector General and the Senate Committee on Indian Affairs. Again, the contents of those e-mails and the truth of their contents — such as the actual availability of certain GSA properties for lease or for sale — cannot be proven through these e-mails, nor may the government rely on them for that purpose. The jury will be instructed that those e-mails which contain these representations, like the ones described above, may be considered only insofar as they may have had some impact on Mr. Safavian’s state of mind or provided him with a motive to make false statements or obstruct justice.”
Safavian, 435 F.Supp.2d at 45-46.
FRE 801(d)(2)(E): Co-Conspirator Hearsay Exception Inapplicable
The court found inadmissible thirteen e-mails which the government offered as co-conspirator statements by lobbyist Abramoff and others. Some of the e-mails were forwarded by the lobbyist to others. The court concluded that the government had failed to show that these communications by the lobbyist with others were admissible in furtherance of an uncharged conspiracy, based on an honest services wire fraud theory. The court conclude:
“The steps necessary to reach the conclusion that Mr. Safavian committed honest services fraud, that certain other individuals were part of an Abramoff/Safavian conspiracy to do so, and that these e-mails contain statements made by others in furtherance of that conspiracy require the Court to make numerous findings — essentially conducting a mini-trial within the trial to determine that the honest services fraud is factually intertwined with the charged offense, that honest services fraud has been proven under one of the two theories, that a number of uncharged individuals participated in a conspiracy with Mr. Safavian to commit honest services fraud, and that the specific statements contained within the proffered e-mails were made in furtherance of that conspiracy. The Court exercises its discretion in declining to undertake this lengthy journey to reach a conclusion that it is not confident will be shown by the government’s evidence for the sake of thirteen e-mails that contain either redundant information or information that could be testified to by Mr. Abramoff, should the government choose to call him. Certainly, each of these exhibits, having been sent to or received by Mr. Abramoff, would be admissible if he were called as a sponsoring witness.”
Safavian, 435 F.Supp.2d at 48 (footnotes omitted).
Some e-mails were excluded by the court as irrelevant. Safavian, 435 F.Supp.2d at 48.<>/p>
In sum, after the provisional ruling by the trial court, the government was able to introduce the e-mails through the testimony of an FBI agent. The government also avoided calling lobbyist Jack Abramoff to testify at trial, including about the e-mails. The Safavian opinion is helpful to review how important e-mails were considered before trial. With the provisional ruling under Fed. R. Evid. 104(a) (preliminary questions on the admissibility of evidence), the proponent of the e-mails learned which e-mails were admitted and which were not.
While the first trial conviction was reversed based on the erroneous exclusion of defense expert testimony, see Corruption Conviction Reversed Based On Exclusion Of Defense Expert Concerning Meaning Of “Business” Dealings With Government Agency, in a second jury trial defendant Safavian was convicted on December 19, 2008 on four counts of making false statements and obstructing an investigation.