Circumstantially Authenticating Email Evidence

In fraud scheme, Seventh Circuit reviews challenge to emails on grounds that they were not authenticated or contained inadmissible hearsay; circuit concludes that the emails were circumstantially authenticated by distinctive characteristics under FRE 901(b)(4) and the emails did not contain statements offered for the truth of the matter asserted, instead the statements were offered to show the falsity and context of the statements, in United States v. Fluker, 698 F.3d 988, 999 (7th Cir. 2012) (Nos. 11-1013, 11-3008 & 11-3082)

Email evidence can be authenticated in a variety of ways under FRE 901. A direct means of authentication is through the testimony of a witness with knowledge “that an item is what it is claimed to be,” under FRE 901(b)(1). For example, a witness who sent or received the email may authenticate it. An indirect or circumstantial manner would be through distinctive characteristics including the “appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances,” under FRE 901(b)(4). A Seventh Circuit case provides a useful example of the circumstantial authentication of emails.

Trial Procceedings

The case involved a Ponzi fraud scheme based on a “Spend and Redeem Program” and a “Housing Program.” The defendants guaranteed the participants a return on their contributions. In about 18 months, the defendants “received more than $16 million from the Spend and Redeem Program and more than $2.6 million from the Housing Program” from more than 3,000 participants. At trial, the government offered five emails sent by one defendant to two participants (Melvin and Jean Norwood) to rebut the claim that a requested mortgage transaction “a personal undertaking” which did not involve the fraud scheme. In the scheme, the defendants used the business name MTE for More Than Enough, Inc. As the opinion explained:

The emails were sent by a “Hayward Borders” at “mte_123@hotmail.com,” and dated August 22, 2007; August 28, 2007; September 6, 2007; September 7, 2007; and September 10, 2007. The first email says that MTE’s bank accounts will be unfrozen on January 1, 2008, and, acknowledging the Norwood’s $108,000 equity payment, gives the Norwoods four options they can pursue regarding their participation in the Housing Program. The second email says the Norwoods’ “account and options” in the A-Buyer program are being reviewed, while the third email discusses the Norwoods’ current status and rights under the A-Buyer program. The fourth email asks for the Norwoods’ full participation regarding how to deal with the “renter” of the property (collect rent from her or tell her she faces eviction), and the fifth email explains how the “renter” will be evicted.
Fluker, _ F.3d at _. The trial court admitted the emails over authentication and hearsay objections. One of the defendants, the purported author of the emails, challenged the introduction of the emails on appeal.

Circuit Analysis: Authentication Issues

The circuit noted that the emails could not be authenticated by direct proof in the absence of the author. Fluker, _ F.3d at _ (citing Mark D. Robins, Evidence at the Electronic Frontier: Introducing E-Mail at Trial in Commercial Litigation, 29 Rutgers Computer & Tech. L.J. 219, 226 (2003) (“Where a written communication such as an e-mail message is transmitted, only the author of the e-mail message or anyone who saw the author compose and transmit the message will truly ‘know’ the message’s authorship, and be able to authenticate it.”) (citation omitted))).

The circuit concluded that there were sufficient distinctive characteristics to authenticate the emails. Among the factors highlighted by the circuit:

The emails sent to the Norwoods had the email address “mte_123@hotmail.com,” with the author identified as “Hayward Borders.” Even though Melvin Norwood testified that he had never met Borders before receiving the emails, the uncontroverted testimony established that [defendant] Borders was an MTE Board Member. It would be reasonable for one to assume that an MTE Board Member would possess an email address bearing the MTE acronym and have the capacity to send correspondence from such an address. Moreover, the Norwoods’ email address, the address Borders’ emails were sent to, was the same address to which [co-defendant] Roy III had previously sent his email correspondence regarding the Housing Program. It would also be reasonable to assume that another MTE Board Member, in this case Borders, would have the ability to discover and send emails to the email addresses of Housing Program participants.

The context of the emails further demonstrates the emails’ author had significant knowledge of the Norwoods’ involvement with the Housing Program and MTE. The emails discuss MTE’s frozen bank accounts, the purchased property being part of the ABuyer program, and the $108,900 of equity from the Norwoods’ home that MTE received from the transaction.
Fluker, _ F.3d at _. Consequently, the unique information in the emails was connected to the facts of the case which was sufficient to authenticate the emails without a witness who authored or had personal knowledge about them.

Hearsay Challenge

The Seventh Circuit had litte trouble resolving the hearsay claim. The defendant argued that the emails were “offered to show that Borders made [certain] assertions.” However, the statements were not offered to establish the truth of the assertions under FRE 801(c)(2). Instead, the " emails actually contained a number of false assertions, so they were not offered for their truth." Fluker, _ F.3d at _ (footnote omitted). The circuit agreed with the government "that these emails were offered to provide context and rebut" the defendant's trial argument that the transactions represented the personal undertaking of the victims and were not part of the fraud scheme.

Conclusion

The Fluker case highlights how the content of email communications may be used to circumstantially authenticate them for trial. The distinctive characteristics may be sufficient to satisfy the requirements of FRE 901(b)(4). Once authentication issues are considered, potential hearsay issues remain. However, in this case, none of the statements were offered to establish the truth of the statements and therefore the bar against hearsay evidence was not implicated.

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