The Low Threshold of Authentication
Ademola Babtunde Okulaja applied for a nonimmigrant visa to enter the United States. He later opened a bank account in the name of Michael C. Millet. He used a counterfeit passport to do this. But the photograph in the passport was the same one on his visa application. The email address he used for the visa application was what he used for the bank account. A bank representative took his photo when he opened the bank account.
Okulaja opened another bank account a few months later, this time with the name David S. Allen. He used a counterfeit passport again and the photograph he used was the same one on the other counterfeit passport. The bank did not take his picture at the time because the equipment wasn’t working. Okulaja provided the address of an unoccupied house on his own street as his home address on the application.
He opened yet another bank account in the name of Ronald Schnur, using yet another counterfeit passport. The photograph in this passport was the same one that he had used earlier in his visa application. The number on this passport was the same number as the other counterfeit passport. A bank representative took his photograph when he opened the account.
He was subsequently indicted for violating 18 U.S.C. 1543 (False Use of a Passport). The indictment didn’t charge him with bank fraud or any other crimes relating to various deposits that he had allegedly made as part of a larger scheme.
At trial, the district court admitted two webcam videos over Okulaja’s objection that they were not sufficiently authenticated. The photographs were offered to demonstrate the identity of the individual who opened two bank accounts. The Government presented a witness who testified to the bank’s business practices regarding the opening of accounts at the institution. Okulaja contended the photos should not have been admitted because the Government’s witness was not present when they were taken and she did not state explicitly that they “fairly and accurately” represented the customer who opened the relevant accounts.
The Fifth Circuit rejected Okulaja’s argument. It said conclusive proof of authenticity is not required “before allowing the admission of disputed evidence.” Testimony by a witness with knowledge that the ‘matter is what it is claimed to be’ can be enough to prove the thing’s authenticity.” Once this requirement has been met, the trial court should admit the exhibit . . . in spite of any issues the opponent has raised about flaws in the authentication because such flaws go to the weight of the evidence, not to admissibility. The Court said the district court didn’t err because the Government’s witness did not identify the person in the photos as Okulaja, but the person who opened the relevant accounts.