Commercial Litigation and Arbitration

Circumstantial Authentication of Email Evidence

United States v. Little, 2012 U.S. Dist. LEXIS 90812 (N.D. Cal. June 18, 2012):

C. Motion in Limine to Exclude Government Exhibit 109

Lastly, Little moves for an in limine order to exclude Government Exhibit 109, which consists of an email and an attached letter sent on July 1, 2003 by Little to Williams, with a copy to Vann. The email states that: "Here is the letter that Keith [Vann] and I created for the Owens. Please read it and email it to them when you have the time." The letter, which is on Global Missions letterhead and addressed to "Mr. and Mrs. Allan J. Owens," pertains to additional items needed to "finalize the donation process and allow us to issue your donation letter." Defendant Little contends that the email and letter must be excluded for lack of proper authentication, and on the ground that the Government cannot show that the letter was actually attached to the email. The authentication of evidence is governed by Rule 901(a), which provides that: "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). "The government need only make a prima facie showing of authenticity, as the rule requires only that the court admit evidence if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification." United States v. Tank, 200 F.3d 627, 630 (9th Cir. 2000) (internal quotations and brackets omitted).

Little argues that there is no evidence that he wrote the email or sent it to anyone, or that the letter was attached to the email. The Government, however, has sufficiently countered this argument with the following proffer. First, the email was sent from Little's email address According to the records of Network Solutions, a company that registers domain names, that particular email address and the domain were registered to Strategic Technology Advisors ("STASV").... Little admitted during his interview with the FBI that he was associated with STASV and had an email address associated with that entity.... Little further admitted to case agents that the subject email "is very possibly something from him" and that he "may well have written the letter with VANN." ... The email address can be tied to Defendant Little through Nicholas Kabbaz, one of two partners at STASV, who set up the email account for Defendant Little and others.

Second, the context of the email and the attached letter support the conclusion that both were from Little. A document "may be shown to have emanated from a particular person by virtue of its disclosing knowledge of facts known peculiarly to him." Fed. R. Evid. 901, Advisory Committee Notes Example (4). Here, the email was sent about one month after the Victims donated the property to Williams and Global Missions. The letter to the Victims specifically references the "Alaska property" along with a discussion of steps to "finalize the donation process." In addition, there is a facial nexus between the email and the letter. The email references a letter to be sent to Owens; the letter is addressed to Owens and bears the same date as the email. While these facts may not conclusively establish that the email and letter were from Little, the Government need only make a prima facie showing of authenticity. Accordingly, the Court DENIES Little's motion in limine to exclude Government Exhibit 109.

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