Fwd: Hamama Matters to research

[Carolynn Beck <carolynnn@gmail.com>]

Begin forwarded message:

From: Carolynn Beck <carolynn.beck@gmail.com>
Date: March 11, 2010 6:01:18 PM EST
To: Haytham Faraj <Haytham@puckettfaraj.com>
Subject: Re: Hamama Matters to research

Haytham,

Sorry in advance for the long email. I'm sending you some notes on the  
issues you had wanted me to discuss in my motion. I also wanted to  
bounce some of these ideas off you and see what you think/if you have  
any suggestions for strengthening my arguments:

1. Authentication of the Documents: The authenticity of a document can  
be established through use of a witness who did not create the  
document/wasn't the records keeper -- the courts don't seem very  
strict in their application of the authentication requirement, keeping  
it very minimal. But we could argue that these documents are not what  
the Government purports them to be: documents and letters recorded in  
furtherance of a conspiracy in which Defendant was involved, and  
instead are documents fabricated by the IIS to implicate Defendant in  
a conspiracy which he was not participating in, thus rendering them  
inauthentic. There would be a fine line that the judge would need to  
walk between the documents being inauthentic and our argument going  
towards the weight of the evidence (to be decided by the jury,  
assuming they could still be admitted under one of the hearsay  
exceptions). Of course, our motion would argue that these documents  
are simply not authentic because they are not what the Government  
presents them to be, and keep it at that. Would you still like me to  
argue against the use of Mr. Sargon as a qualified witness to  
authenticate the documents?

2. Business Records Exception: Please tell me if I'm missing/ 
misunderstanding something, but it seems from my reading of the  
caselaw and from the deposition of Mr. Sargon that he might be  
considered a qualified witness under the Business Records Exception  
since he was in the IIS for so long. However, the 6th circuit has  
stated in US v. Jenkins that "unless" the source of information or  
method/circumstances of preparation indicate a lack of  
trustworthiness, that records are admissible once 4 factors (regularly  
conducted business activities, kept in regular course of business,  
regular practice of business was to make the memorandums, and made by  
a person with knowledge of the transaction or from information  
transmitted by a person with knowledge). This seems to imply that even  
if all these elements of the business records exception WERE met, if  
the source of information or method/circumstances of preparation  
indicate a lack of trustworthiness, the records are inadmissible.

We could argue that the evidence does not meet the indicia of  
reliability that generally attaches to a business record because the  
organization that created these records had a strong motivation to  
fabricate and maintain records for the sole purpose of eliminating  
those who opposed the existing governmental regime. I know you were  
hesitant about giving too much info to the government about our  
strategy, so please let me know if you'd prefer I take this part out  
or reword it, or be careful about mentioning certain parts of our  
argument. If you'd prefer, I could maybe speak in general to the  
motivations of an intelligence agency to fabricate information,  
pointing to the fact that even our own intelligence agencies will  
conduct misinformation campaigns abroad for their own needs/goals. We  
would use this to distinguish the evidence proffered in this case from  
evidence that was admitted in cases like Air Land Forwarders, where  
the business actually does have the motivation to keep accurate records.

Otherwise, I'm hoping once I get a chance to Skype with Ibrahim, I can  
put some more detail into this argument to convince the judge that the  
business records and residual exceptions do not apply because the  
records are so unreliable. In addition, this would strengthen our  
argument against admitting the docs under the coconspirator exception  
because we would argue that these records don't establish much more  
than the fact that the IIS wanted our government to prosecute people  
such as our client who they knew to oppose the Hussein regime.

I guess where I'm running into trouble is in determining what  
information I need to/can include in our response to the government's  
motion in order to make this argument a strong one. Also, what would  
happen if we made this argument; would we need Ibrahim to testify in  
front of the judge as to the unreliability before we can get these  
documents excluded? Will we also show additional evidence as to  
Hamama's opposition to the Hussein regime that would tend to show that  
the IIS had the motivation we're claiming they do?

3. Multiple levels of hearsay re the business records exception:  
general rules of evidence state that each level of hearsay must be  
admissible under an exception. So if there are any documents that have  
multiple levels of hearsay, the Government must prove that each level  
of hearsay is admissible. I actually had some trouble finding caselaw  
discussing this at length.

US v. Payne (437 F. 3d 540) noted in passing (but admitted the evid)  
that where an out of court statement is nested within another, Rule  
805 requires that both statements are admissible. There was a case  
that mentioned double hearsay in conjunction with business records,  
and noted that it was only relevant when the record relied on info  
collected by someone outside the company. (SEC v. Conaway, 2009)  
Another case, In Re Printup, a bankruptcy case, excluded business  
records stating that the Defendant had stolen a car because the  
business records included a declarant's out-of-court statement which  
was not within an exception for each level of hearsay.

So, it looks like we could probably get some of the documents excluded  
on the basis of multiple levels of hearsay... assuming the Government  
can't prove that another exception applies to the second or third  
layer of hearsay within the documents. Would we need to point specific  
documents out in our response, or do we just generally state that all  
documents with multiple levels of hearsay should be excluded absent a  
showing from the government that each level of hearsay falls under a  
valid exception to the hearsay rules?

4. Residual Exception: I found a few cases in the 6th cir. stating  
that the residual rules were drafted to apply only when exceptional  
guarantees of trustworthiness exist and when high degrees of  
probativeness and necessity are present, and that the Senate Committee  
stated that the residual exceptions were to be used only rarely and in  
exceptional circumstances (or other discussions that seem to indicate  
the burden on the proponent of a residual exception is extremely  
heavy). Thus, I think we could apply the prior arguments about  
unreliability of the documents and the high likelihood in our  
circumstances that these documents are not in fact what the government  
purports them to be to the argument that the residual exception  
doesn't apply here either.
--another thing I should note here. The Crawford decision might change  
how the court applies the residual exception, though it's unclear how  
-- all the cases discussing the admission of evidence under the  
residual evidence are pre-Crawford (though I'll go back and search  
again to make sure.) But I can't imagine that Crawford would make the  
residual exception any more likely to apply, more likely that it WON'T  
apply.

I emailed this to you so that you could mull them over when you have  
the time. Please let me know what you think whenever you have a chance.

Thank you,

Carolynn Beck
(202) 316-1367



On Mar 10, 2010, at 5:41 PM, Haytham Faraj wrote:


1.       May the authenticity of a document be established through the  
use of a witness who did not create the document, was not the records  
keeper?
2.       Under rule 901(b)(1), define what “witness with knowledge  
means?”
3.       What does under qualified witness mean under F.R.E. 802(6)?   
What is the level of familiarity a witness must have with the record  
keeping procedure of an organization such that the witness may lay a  
foundation to meet the business records exception under United States  
v. Baker, 458 F.3d 513, 518?
4.       Does the business records exception apply to a document and  
all its content?  What about hearsay within hearsay in a document?
5.       Provide any available case law that counsels courts to not  
use the residual hearsay exception?