-. -
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4
NATIONAL SCIENCE FOUNDATION
OFFICE OF INSPECTOR GENERAL
OFFICE OF INVESTIGATIONS
Il CLOSEOUT MEMORANDUM
TO: AIGI File Number: I97010009 Date: 15 May 2002
Subject: Closeout Memo , Page 1 of 1
There was no closeout written at the time this case was closed. The following information was
extracted from the file in conformance with standard closeout documents.
Our office was informed that the subject' was alleged to have forged a signature that appeared on a
reference letter for the Alan T. Waterman Award. The individual whose name was forged wrote to
NSF saying he never wrote a letter for the subject or nominated the subject for this Award. The
subject was convicted of forgery.
The attached documents constitute the closeout for this case.
I
Mohamed Siddiqui, Univ. of South Alabama
Prepared by: Cleared by:
Agent: Attorney: Supervisor: AIGI
Name:
Signature &
date:
\
NATIONAL SCIENCE FOUNDATlOh
' 4201 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22230
March 23, 2000
OFFICE OF M E '
GENERALCOUNSEL
Ms. Natalie Jones
Office of GSA Acquisition Policy ( M V )
U.S. General Services Administration
1800.F Street, N.W.
Room 4012
Washington,.D.C. 20405
Re: Addition of name to GSA' s list of suspended and debarred
parties
Dear Ms. Jones :
On March 22, 2000, the National Science Foundation (NSF) debarred
Dr. Mohammed Siddiqui from receiving financial and non-financial
assistance and benefits under Federal non-procurement programs and
participating in Federal procurement transactions. The debarment
is based upon his criminal conviction of five counts of fraud and
false statements, two counts of obstruction with a Federal
investigation, and one count for failure to appear in court. A
copy of our letter notifying Dr. Siddiqui of his debarment is
attached.
NSF requests that GSA add Dr. Siddiqui to the list of debarred
parties. Dr. Siddiqui is debarred until July 29, 2002. Dr.
Siddiqui's last know address is 141'carondoletSouth, Mobile, AL
36608.' The appropriate treatment code is R.
If you need any additional information in order to place Dr.
Siddiqui's name on the list, please do not hesitate to contact me
at (703) 306-1060.
Sincerely,
Anita Eisenstadt
Assistant General Counsel
Enclosure
cc: Robert Hardy/CPO
Montgomery Fisher/OIG
Telephone (703)306-1060 FAX (703)306-0149
NATIONAL SCIENCE FOUNDATIO:
4201 WILSON BOULEVARD
ARLINGTON, VIRGINIA 22230
J u l y 29,'1999
OFFICE OF THE
GENERAL COUNSEL
CERTIFIED MAIL-RETURN RECEIPT REOUESTED
Dr. Mohamed Siddiqui
141 Carondolet Court South
Mobile, AL 36608
.Re: Notice of Suspension and Proposed Debarment
Dear Dr. Siddiqui:
This letter serves as formal notice that the National Science
Foundation (NSF) has suspended you and is proposing to debar you
from directly or indirectly obtaining the benefits of Federal
grants for a period of three years from the date of this letter.
A person who is debarred will be excluded during the period of
debarment from Federal financial and non-financial assistance and
benefits under non-procurement Federal programs and activities.
See 45 CFR Sections 620.110 and 620.200. In addition, you will
! also be prohibited from receiving any Federal contracts or
approved subcontracts under the Federal Acquisition Regulations
(FAR) at 48 CFR Subpart 9.4 for the period of this debarment. 45
CFR Section 620.110(c). Debarment of an individual is effective
throughout the executive branch of the Federal Government. The
effect of suspension is the same as debarment, except that it is
for a temporary period of time pending completion of debarment
proceedings.
Reasons for Sus~ension'
and Debarment
Your suspension and debarment is based upon a referral from our
.
Office of Inspector General (OIG) The Foundation's record
demonstrates that you committed irregularities seriously
reflecting on the propriety of further Federal Government
dealings with you, and that there is cause for your suspension
and debarment. The Foundation's current administrative record
indicates that you were an Assistant Professor at the University
of South Alabama and that you submitted falsified recommendations
from three scientists in order to receive the National Science
' Foundation's (NSF) prestigious Alan T. Waterman Award and a
Faculty Early Career Development Award. The investigation of
this matter further disclosed that you obstructed the OIGfs
investigation of the forgery charges by attempting to convince
two of the scientists to falsely state that they had authorized
I
you to sign their names to the recommendations.
Telephone (703) 306-1060 FAX (703) 306-0149
Specifically:
1. In April, 1997, an Indictment was filed in the United State
District Court for the Southern District of Alabama in the matter
of United States v. Mohamed Siddiaui, Case No. 1:97CR00085-001.
A copy of the Indictment is enclosed and the allegations are
hereby incorporated by reference. The Indictment charged you
with a total of 7 counts, including five counts of fraud and
false statements in violation of 18 U.S.C. §lo01 and two counts
of obstruction of proceedings before a U.S. agency - National
Science Foundation, in violation of 18 U.S.C. §1505. A copy of
the Indictment is hereby incorporated by reference.
2. A jury trial commenced on May 14, 1998 and on May 15, 1998,
the jury found you guilty of Counts 1-7 of the Indictment.
3. On August 11, 1998, you failed to appear for sentencing and
consequently were indicted and plead guilty to one count of
failure to appear, in violation of 18 USC 83146 (a)(1) .
4. On November 24, 1998, the United States District Judge
sentenced you to the time you had already served; three years of
supervised release, which -included participation in the Home
Confinement Program, and a criminal penalty of $700.00. You were
also fined $100 for the failure to appear infraction. (A copy of
the Judgments are attached).
Reuulatorv Basis for Sus~ensionand ~ebarment
,t
I
45 CFR Section 620.305 provides that debarment may be imposed
for:
. (a) conviction of or civil judgment for:
(1) Commission of fraud or a criminal offense in
connection with obtaining, attempting to obtain, or
performing a public or private agreement or
transaction;
* * *
(3) Commission of embezzlement, theft, forgery,
bribery, falsification or destruction of records,
making false statements, receiving stolen property,
making false claims, or obstruction of justice; or
( 4 ) Commission of any other offense indicating a
lack of business integrity or business honesty that
seriously and directly affects the present
responsibility of a person.
Your conviction for fraud and false statement and obstruction of
a Federal Government investigation, as well as your conviction
for failure to appear, support a cause for debarment under 45 CFR
I
Sections 620.305 (a)(1), (2), and (3) .
Your convictions reflect
.'
adversely on your integrity, honesty, and present responsibility
-
in relation to Federal financial and non-financial assistance and
- - benefits. The filing of the Indictments and your subsequent
convictions also establish adequate evidence for your suspension.
45 CFR Sections 620.400 and 620.405.
Debarment must be for a period commensurate with the seriousness
of the cause. 45 CFR Section 620.320(a). It should generally
not exceed three years, but where circumstances warrant, a longer
period may be imposed. 45 CFR Section 620.320. The burden of
proof is on the government to establish facts which juatify
debarment by a preponderance of the evidence. 45 CFR Section
620.314(c). Where the proposed debarment is based upon a
conviction, the standard shall be deemed to have been met. 45 i;
CFR Section 620.314 (c).
You were found guilty, after a jury trial, of submitting five
falsified documents to NSF in order to obtain Federal funding.
You were also found guilty of obstructing the OIGts investigation
of the fraud. You then failed to appear in Court on your
sentencing date. Because of the seriousness of these offenses,
we are proposing debarment for a period of three years.
Procedures Governins Prowosed ~ebarment/Sus~ension
The provisions of 45 CFR Sect ions 620.300 through 620.420 govern
debarment and suspension procedures and decisionmaking. Under
our regulations, your client has 30 days after receipt of this
'notice to submit, in person, or in writing, or through a.
representative, information and argument in opposition to his
debarment. 45 CFR Section 620.313(a). Comments submitted within
the 30-day period will receive full consideration and may lead to
a revision of the,recommended disposition. If we do not receive
a response to this notice within the 30-day period, this
,debarment will become final .
Any response should be addressed to me at the National Science
Foundation, Office of General Counsel, 4201 Wilson Boulevard,
Room 1265, Arlington, Virginia, 22230. For your information, we
are attaching a copy of the Foundation's regulations on Non-
procurement Debarment and FAR Subpart 9.4.
Lawrence Rudolph
General Counsel
Attachments (5)
Indictment
Judgements ( 2 )
Nonprocurement Debarment Regulationq,
FAR Regulations
I ..
UNITED STATES of America, Plaintiff-Appellee, v. Mohamed
SIDDIQUI, ~efendant- ellant ant.
No. 98-6994.
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH
CIRCUIT
235 F.3d 1318; 2000 U.S. App. LEXIS 31882; 55 Fed. R. Evid.
Serv. (Callaghan) 301; 14 Fla. L. Weekly Fed. C 285
December 15,2000, Decided
December 15,2000, Filed
SUBSEQUENT HISTORY:
[**I] Certiorari Denied June 25, 2001, Reported at: 2001 U.S. LEXIS 4878.
PRIOR HISTORY:
Appeal from the United States District Court for the Southern District of Alabama. No. 97-
00085-CR- 1). Richard W. Vollmer, Judge.
DISPOSITION:
AFFIRMED.
COUNSEL:
For Mohamed Siddiqui, Appellant: Christopher Knight, Federal Defenders Organization,
Inc., Mobile, AL.
I
For United State's of America, Appellee: Richard W. Moore, Charles A. Kandt, U.S.
Attorney's Office, S.D. of Alabama, Mobile, AL.
1; JUDGES:
Before COX and HULL, Circuit Judges, and GEORGE *, District Judge.
* Honorable Lloyd D. George, District Judge for the District of Nevada, sitting by
designation.
OPINIONBY:
GEORGE
OPINION:
[* 13201
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 [**2] 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 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 [**3] received a fax from Siddiqui stating I
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
[*I3211 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 [**4] 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 [**5] 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. O n
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. O n 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 [**6] 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 [* 13221 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 [** 71 those requests.
During trial, the district court allowed the depositions to be ,read into evidence, and
admitted the e-mail into evidence.
11. 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
a/. Mendez, 117 F.3d 480, 484 ( l l t h Cir.1997). In the absence of a contemporaneous
objection, hearsay claims are reviewed under the plain error doctrine. United States w.
Hernandez, 896 F.2d 513,523 ( l l t h Cir.), cert. [**8] 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 w. 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 w. McKeewe, 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 "appearance,
contents, substance, internal patterns, or other distinctive characteristics, taken in
conjunction with circumstances." Fed.R.Evid. 901(b)(4); United States w. Smith, 918 F.2d
1501, 1510 (11th Cir. 1990) ("the 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 [**9] 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 (1l t h Cir.), cert. denied sub norn.,
I
Rodriguez or. United States, 5 13 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 "middiquo at
jajuarl .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. [** 101
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 [* 13231 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 - m i l
Siddiqui argues that [**Ill 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 [**I21
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 u. 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 [**I31 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. [* 13241
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 [**I41 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 won 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 [**I51 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 (1l t h Cir.), cert. denied, 493 U.S. 932, 110 S. Ct.
321, 107 L. Ed. 2d 3 12 (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. O n 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, [**I61 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." O n 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. [* 13251
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 [** 171 the center regarding Yamada's I
unavailability was dated May 18, 1998, and that her testimony was needed on May 15, 1998.
9
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 [* * 181 provided.
AFFIRMED.
Applicant/Grantee/PI False Certification
Published by the National Science Foundation, Office of Inspector General on 1998-12-10.
Below is a raw (and likely hideous) rendition of the original report. (PDF)