Case of the Day: Starski v. Kirzhnev

Today’s case of the day, Starski v. Kirzhnev (1st Cir. 2012), is the appellate decision on one of my favorite cases of the day—I wrote about the District Court decision in my post of March 21, 2011. Here was my description of the facts:

Vietnam owed a debt to Russia. Starski had connections in the Vietnamese government, and Kirzhnev had contracts in the Russian government. Starski’s claim was that he had a contract with Kirzhnev under which Kirzhnev was to use his contacts to facilitate a debt-swap transaction between the two countries. Upon the occurrence of the transaction, Kirzhnev was to pay Starski a commission. The transaction went through, but Starski alleged that Kirzhnev never paid. He sued him for breach of contract.

Before trial, the parties sparred over the admissibility in evidence of what purported to be a copy of an official document from the Moscow City Court evidencing Kirzhnev’s conviction on charges of bribing an official, illegal border crossing, and forgery. Starski sought to use the document to impeach Kirzhnev’s character for truthfulness. The court held that the document was inadmissible.

The case was tried to a jury, which found that there was no contract between the parties. The court entered judgment on on the verdict for Kirzhnev. Starski moved for a new trial on the grounds that the court had erred by excluding the evidence of Kirzhnev’s supposed criminal conviction. The court denied the motion, finding, as it had previously, that the document was not properly authenticated.

On appeal, Starski argued that the judge had abused his discretion by excluding the evidence of Kirzhnev’s supposed conviction. The panel, which included retired Justice David Souter, sitting by designation, agreed with Starski that the evidence of the conviction was relevant, because Kirzhnev’s credibility was at issue. Under FRE 609(a)(2): “a conviction within the prior ten years for a crime whose elements include a ‘dishonest act or false statement’ is not subject to ordinary Rule 403 balancing and ‘must be admitted’ for impeachment purposes.”

As I described in the prior post, there were issues with the authenticity of the document showing the conviction:

The document itself is, as the judge found, unclear. It does not appear to be a copy of the judgment of the Moscow court, but instead a response to an inquiry (“this is to confirm …”), signed by the secretary of the court, and apparently lacking a seal.

Judge Boudin, writing for the unanimous panel, wrote that the issue “has an opéra-bouffe air of unreality,” because Kirzhnev had never really denied the fact of the conviction, and because even without the evidence of the conviction, the jury “likely fathomed just what Kirzhnev was doing to earn his own commission.” But the judge’s application of the rules of evidence was correct: in the absence of testimony authenticating the document, it could be self-authenticating under FRE 902(3) only if “(1) signed or attested by a person who is authorized to do so, and (2) accompanied by a final certification—either by certain officials enumerated in the rules or pursuant to treaty—of the genuineness of the signature and official position of the signer or attester.” Starski failed to provide a final certification, and the panel didn’t have the time of day for Starski’s argument that the judge didn’t sufficiently warn him of the requirement of authentication before trial: “[T]he authentication requirements are set forth in the Federal Rules of Evidence and it is not the court’s job to remind counsel of the need to comply with them.” The court affirmed the judge’s evidentiary ruling.

I am still a little mystified why Starski did not just obtain an apostille and, under FRCP 44(a)(2)(A)(ii), avoid the need for a final certification.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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