                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-25-2003

USA v. Khorozian
Precedential or Non-Precedential: Precedential

Docket No. 02-2820P




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Recommended Citation
"USA v. Khorozian" (2003). 2003 Decisions. Paper 303.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/303


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                                  PRECEDENTIAL

                                          Filed August 25, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                           No. 02-2820


                UNITED STATES OF AMERICA
                                 v.
                     ANGELA KHOROZIAN,
                                             Appellant

        Appeal from the United States District Court
                for the District of New Jersey
          (D.C. Criminal Action No. 00-cr-00393-1)
         District Judge: Honorable William H. Walls

                     Argued April 24, 2003
        Before: SCIRICA,* Chief Judge, AMBRO and
                  GARTH, Circuit Judges

                 (Opinion filed June 20, 2003)
                         Herald Price Fahringer, Esquire
                          (Argued)
                         Erica T. Dubno, Esquire
                         Lipsitz, Green, Fahringer, Roll,
                          Salisbury & Cambria, LLP
                         780 Third Avenue, 32nd Floor
                         New York, NY 10017




* Judge Scirica began his term as Chief Judge on May 4, 2003.
                                 2


                         Ivan Stephan Fisher, Esquire
                         251 East 61st Street
                         New York, NY 10021
                           Attorneys for Appellant
                         Christopher J. Christie
                          United States Attorney
                         George S. Leone
                          Chief, Appeals Division
                         Gail Zweig (Argued)
                          Assistant U.S. Attorney
                         Office of the United States Attorney
                         970 Broad Street, Room 700
                         Newark, NJ 07102-2535
                           Attorneys for Appellee


             ORDER AMENDING SLIP OPINION

AMBRO, Circuit Judge:
   WHEREAS, the panel for the captioned case has
determined that a portion of the precedential Opinion filed
June 20, 2003, be amended as follows (which does not
affect the rights of the parties):
  Delete Section II.B.1 (“Evidentiary Issue”) and replace
with the following:
  1. Evidentiary Issue
  While Kono was on the stand, Khorozian’s counsel
sought to move into evidence a fax of the (allegedly fake)
investment contract Khorozian sent to Kono, at the top of
which was a header — allegedly generated by Khorozian’s
fax machine — bearing the transmission date of May 15.1
Khorozian wanted to establish, through this fax, that the
investment contract was drafted on or before May 15 to

1. The Government had already introduced an English-language version
of the purported agreement in its case-in-chief, sans fax header.
Khorozian sought to introduce a Portuguese-language version that she
alleged she faxed to Kono.
                              3


refute Queirolo’s testimony that it was concocted as part of
a plan to deceive the bank. She also wanted to show that
she and Teixiera had a commercial relationship before May
25, the date that Queirolo received the checks with
Teixiera’s name on them, to support her contention that
she believed the funds were to be used for the investment
project described in the fax (and thus that she had no
intent to cause the bank loss).
  The District Court refused to admit the fax, ruling that
Kono, as the recipient of the fax, was not the proper party
to lay a foundation for admitting the transmission and that,
in any event, the fax was hearsay. Khorozian argues that
the District Court erred and seeks a new trial.
   The District Court is mistaken on both counts. The Court
was correct that ordinarily a fax’s sender would
authenticate the document by testifying to such
foundational facts as that the fax machine automatically
date-stamps transmissions, that it was in proper working
order, that she did not tamper with it, etc. Cf. United States
v. Branch, 970 F.2d 1368, 1371 n.3 (4th Cir. 1992) (setting
out as factors relevant to a foundation for admission of a
tape recording, inter alia, that the device was in proper
working order, that no alterations were made to the
recording at issue, and that the operator could properly
operate the machine). In this case Khorozian exercised her
Fifth Amendment right against self-incrimination and thus
did not take the stand. However, Kono could — and did —
authenticate the fax under Federal Rule of Evidence 901(a)
by testifying that she received the fax on the date indicated
on the header. Authentication does not conclusively
establish the genuineness of an item; it is a foundation that
a jury may reject.
   Moreover, neither the header nor the text of the fax was
hearsay. As to the header, “[u]nder FRE 801(a), a statement
is something uttered by ‘a person,’ so nothing ‘said’ by a
machine . . . is hearsay.” 4 Mueller & Kirkpatrick, Federal
Evidence § 380, at 65 (2d ed. 1994). The fax’s contents were
not hearsay because Khorozian sought to introduce the fax
for the fact that it contained the name Teixiera (and was
sent on May 15), not for its truth. The fax is relevant,
regardless of its truth, to rebut the Government’s
                                4


contention that she and Queirolo fabricated the document
after May 25 as part of a scheme to defraud the bank.
   Because the District Court’s errors were non-
constitutional — misapplication of the Federal Rules of
Evidence — we may nonetheless affirm the jury’s verdict if
we “believe[ ] . . . that it is highly probable that the error did
not contribute to the judgment.” McQueeney v. Wilmington
Trust Co., 779 F.2d 916, 924 (3d Cir. 1985) (emphasis
removed). We do not believe that the jury’s verdict would
have been different had the fax been admitted. First, the
other evidence against Khorozian, discussed above, was
significant. Second, even were the fax introduced, it would
have been consistent with the rest of the Government’s
case. Fax headers are easily fabricated by the sender. See
Total Containment, Inc. v. Environ Products, Inc., 921 F.
Supp. 1355, 1370 n.3 (E.D. Pa. 1995), affirmed in part and
vacated in part on other grounds, 1997 WL 16032 (Fed. Cir.
1997) (“Apparently, a fax burn-in can be rather easily
faked. The time and date printed by the machine can be
changed merely by resetting the machine.”). Queirolo
testified that Khorozian intended to bribe an African official
to corroborate the fax. Kono may have been that person.
   Third, admission of the fax would not meaningfully have
aided defense counsel’s ability to develop the argument that
Khorozian and Teixiera had a business relationship before
May 25. Kono testified that she received “a contract
between Mrs. Khorozian and her investor . . . around the
fifteenth [of May.]” Even if in the course of Kono’s testimony
it was unclear to the jury that the document she allegedly
received was the investment contract containing Teixiera’s
name, in closing argument Khorozian’s counsel drew this
connection clearly. Defense counsel referred to the allegedly
fabricated joint venture agreement between Sugarbank and
Teixiera, bearing a date of May 8, which the Government
had already introduced into evidence as a “fake.” And but
a minute later, counsel referred to Kono’s testimony. He
completed the connection by asking rhetorically: “[H]ow is
it that Mrs. Kono could have gotten a copy of that
document [on May 15] that wasn’t even created until June
1 [according to the Government] when she got all upset
about those wire instructions[?]”
                              5


  We therefore hold that the District Court’s errors were
harmless.
                                  By the Court,
                                  /s/ Thomas L. Ambro
                                  Circuit Judge
DATED: August 25, 2003

A True Copy:
        Teste:

                  Clerk of the United States Court of Appeals
                              for the Third Circuit
