Hussein v. Barrett et al

Filing 59

ORDER SUSTAINING OBJECTION TO DEFENDANTS EXHIBIT C. Signed by Judge Jon S. Tigar on December 19, 2013. (wsn, COURT STAFF) (Filed on 12/19/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAMEH HUSSEIN,

Case No. 11-cv-05317-JST

Plaintiff,
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v.

ORDER SUSTAINING OBJECTION TO
DEFENDANTS’ EXHIBIT C

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ROBIN BARRETT, et al.,
Defendants.

United States District Court
Northern District of California

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At the trial in this matter held December 2, 2013, Plaintiff Sameh Hussein objected to the

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admission of Defendants’ Exhibit C on the grounds of lack of authentication, lack of foundation,

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violation of the best evidence rule, and hearsay. The Court took the matter under submission and

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permitted the parties to file supplemental briefs concerning the issue. The Court now sustains the

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objection.

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Defendants’ Exhibit C purports to be a “Certificate of Islamic Marriage” issued by a

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mosque in Sacramento, California. It states that Plaintiff and Stacey Anne Mabrey entered into an

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Islamic marriage on “the 12 day of 13 2002.” According to the certificate, a dowry of $100 was

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provided. It appears to be signed by three witnesses and Imam Mahmoud Abdel Hafez. It does

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not appear to have been signed by either Plaintiff or Ms. Mabrey.

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Defendants first argue the certificate is admissible pursuant to Federal Rule of Evidence

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902(11). Federal Rule of Evidence 902(11) provides that the following type of document is self-

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authenticating and therefore does not require extrinsic evidence of authenticity in order to be

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admitted:

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(11) Certified Domestic Records of a Regularly Conducted
Activity. The original or a copy of a domestic record that meets the
requirements of Rule 803(6)(A)-(C), as shown by a certification of

the custodian or another qualified person that complies with a
federal statute or a rule prescribed by the Supreme Court. Before
the trial or hearing, the proponent must give an adverse party
reasonable written notice of the intent to offer the record — and
must make the record and certification available for inspection — so
that the party has a fair opportunity to challenge them.

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Defendants argue that the marriage seek to admit the marriage certificate on the basis of a
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“Certification of Domestic Record of a Regularly Conducted Activity and/or Record of Religious
Organization Concerning Personal or Family History” signed by Mahmoud Abdel Hafez on

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November 29, 2013. That document was produced by the Government for the first time at trial
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after the Court ruled that Mr. Abdel Hafez could not testify due to the Government’s failure to

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disclose the witness pursuant to Federal Rule of Civil Procedure 26(a)(3).
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Plaintiff argues the certification document does not qualify for Rule 902(11) treatment

United States District Court
Northern District of California

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because: the document was not signed and sworn under penalty of perjury; the document “is not
certified”; there is no evidence the author of the document, Mr. Abdel Hafez, is the custodian of
records or “another qualified person”; the document was not produced to Plaintiff until trial, nor

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did Plaintiff have an opportunity to inspect the document before trial; and, finally, the document
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fails to satisfy the requirements of FRE 803(6)(A)–(C).
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The Court finds that Defendants’ Exhibit C is not admissible pursuant to Rule 902(11).
The rule requires the offering party to “give an adverse party reasonable written notice of the
intent to offer the record — and must make the record and certification available for inspection —
so that the party has a fair opportunity to challenge them.” Fed. R. Evid. 902(11) (emphasis

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added). Here, though Defendants gave Plaintiff advance notice of their intent to offer the marriage
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certificate, they failed to make Mr. Abdel Hafez’ certification for inspection available to Plaintiff
“[b]efore the trial.” Plaintiff did not have a fair opportunity to challenge the certification.
Consequently, the certification must be excluded. Without the certification, Defendants’ Exhibit

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C is not admissible pursuant to Rule 902(11).
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Defendants’ remaining arguments mistakenly presume Exhibit C has been authenticated
pursuant to FRE 901, as the document is not self-authenticating pursuant to FRE 902.1 Rule 901

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For example, without addressing Rule 901, Defendants argue Exhibit C is admissible pursuant to
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requires the authentication of a written document through “evidence sufficient to support a finding

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that the item is what the proponent claims it is.” Fed. R. Evid. 901(a). Defendants have offered

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no evidence authenticating Exhibit C. Instead, Defendants apparently seek to authenticate Exhibit

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C with Mr. Abdel Hafez’ certification, which was not admitted into evidence at trial. Defendants

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have not authenticated the certification itself through other, already admitted evidence.

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Consequently, it is not in evidence and cannot serve to authenticate Exhibit C. Exhibit C remains,

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therefore, unauthenticated, and it cannot be admitted as evidence.

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United States District Court
Northern District of California

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For the foregoing reasons, Plaintiff’s objection to Defendants’ Exhibit C is hereby
SUSTAINED.
IT IS SO ORDERED.
Dated: December 19, 2013
______________________________________
JON S. TIGAR
United States District Judge

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the hearsay exception for records of religious organizations concerning personal or family history.
See Fed. R. Evid. 803(11) (excluding from hearsay rule “[a] statement of birth, legitimacy,
ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal
or family history, contained in a regularly kept record of a religious organization.”).
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