United States Court of Appeals

For the First Circuit

No. 11-1393

EUGENE STARSKI,

Plaintiff, Appellant,

v.

ALEXANDER KIRZHNEV and DAI SYNDITRADE LIMITED,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Boudin, Circuit Judge,

Souter,* Associate Justice,

and Thompson, Circuit Judge.

Seth S. Stoffregen for appellant.

Peter Charles Horstmann with whom Partridge, Ankner &

Horstmann was on brief for appellees.

June 20, 2012

*

The Hon. David H. Souter, Associate Justice (Ret.) of the

Supreme Court of the United States, sitting by designation.
BOUDIN, Circuit Judge. This is an appeal by Eugene

Starski, who asserted claims in the district court against

Alexander Kirzhnev (and Kirzhnev's company DAI Synditrade ("DAI"))

growing out of a commercial dispute. The merits of the claims are

not central to the issues raised on appeal but some understanding

of Starski's lawsuit and version of events is needed to provide

context.

Starski claims that he had a business relationship with

a Vietnamese enterprise called Sovico and, in cooperation with it,

sought to facilitate a $1.5 billion debt swap between the

governments of Vietnam and the Russian Federation; that Starski

joined with Kirzhnev, said to have high level contacts in the

Russian government, to set up the swap; that Kirzhnev agreed to pay

Starski a substantial commission; that $1 billion of the debt swap

was completed and $100 million in commissions paid to some

combination of Kirzhnev, DAI, and Sovico; but that Kirzhnev reneged

and paid Starski nothing.

In January 2005, Starski filed suit in the district court

in Massachusetts against both Kirzhnev and DAI seeking at least $25

million in damages. Starski asserted diversity jurisdiction,

claiming that the two men lived in the United States and were

citizens of different states. The complaint set forth claims for

conversion, breach of contract, unjust enrichment, fraud and unfair

business practices in violation of Massachusetts' Chapter 93A,

-2-
Mass. Gen. Laws ch. 93A, § 11. Proceedings were protracted; partly

this was because Kirzhnev was at the time imprisoned in Russia,

seemingly after conviction for bribing an official in that

country's Ministry of Finance, although the timing is unclear and

records related to the conviction are a subject of dispute.

As the case proceeded, the district court disposed of

certain of the claims on summary judgement; and finally in 2010, a

trial was held focusing on Starski's factual claim that Kirzhnev

had entered into and then breached a contract promising

compensation to Starski if the debt swap was completed. At the

close of trial, the jury found specially on the verdict form that

no such contract had been proved by Starski and therefore did not

reach the questions of breach or damages.

Starski's appeal raises three questions, the first of

which is a claim that the district court abused its discretion in

excluding evidence. Specifically, Starski says the court erred in

precluding him from impeaching Kirzhnev through evidence of

Kirzhnev's convictions in Russian court for bribery and forgery,1

1Starski attached to his motion in limine an original and

purported English translation of a Russian document that he said

was evidence of Kirzhnev's convictions. The English version had a

heading stating "Enquiry" and said: "This is to confirm that

Kirzhnev Alexander . . . was convicted by Moscow City Court and

sentenced to 4 years and 6 months . . . under articles: 291, part

1 (bribing government official) 322, part 1 (illegal sovereign

border crossing) 327, part 1 and 3 (forgery of documents and

knowingly using forged documents)." It was signed by "Secretary of

the court: Panova E.V."

-3-
and in barring Starski from cross-examining Kirzhnev about

documents that were seized or destroyed during his arrest by

Russian authorities for those same crimes.

Both sides had sought a ruling in limine, and the

district judge at that time ruled that the evidence was excluded

"without prejudice to [Starski] to provide a fuller showing in the

context of the trial itself" that, "assuming it is authenticated,"

the evidence was admissible for impeachment purposes. The court

told Starski he would have to provide "something that gives me some

degree of security with respect to the integrity of Russian

criminal process in this area."

At trial, Starski attempted to cross-examine Kirzhnev

about documents seized or destroyed during his arrest by Russian

authorities; the court ruled that Starski could ask whether

Kirzhnev possessed the items but could not inquire further because

"no showing regarding the convictions in Russia . . . satisf[ies]

me that the manner in which they were obtained was something that

should be recognized in the United States[, s]o, I am keeping it

out absent some showing."

On a new trial motion, the district court held that the

evidence of Starski's Russian convictions was insufficiently

authenticated: the document was not an official record of

conviction but a response to an inquiry (presumably by Starski);

the translated version indicated a place for an official stamp but

-4-
the original contained no such stamp; and it was not supported by

a certification of the genuineness of the signature and position of

the document's signer. Starski v. Kirzhnev, No. 06-10157-DPW, at

*4-6 (D. Mass. Mar. 15, 2011), 2011 WL 923499.

The district court in its post-trial ruling also held the

evidence inadmissible, regardless of its authenticity, because

"recent criticisms of the Russian criminal justice system" called

the fundamental fairness of the proceedings underlying Kirzhnev's

convictions into question and, despite being invited to do so,

Starski offered nothing to support the fairness of the convictions

at issue or the Russian criminal justice system generally. 

Starski, 2011 WL 923499 at *6.

Central to the merits of the case was whether Kirzhnev

had contracted with Starski to pay a commission--Starski said yes

and Kirzhnev no. Although Starski offered documentary evidence of

a contract offer, Kirzhnev said the document or at least his

purported signature was a forgery. Thus, evidence of Kirzhnev's

credibility was certainly material; and 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. Fed. R. Evid.

609(a)(2); United States v. Tracy, 36 F.3d 187, 192 (1st Cir.

1994), cert. denied, 514 U.S. 1074 (1995).

-5-
However, the document showing a conviction must be

authenticated, and absent testimony (e.g., from a court official),

a foreign document is self-authenticating 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. Fed. R. Evid.

902(3); see also Fed. R. Civ. P. 44(a)(2). Here, Starski tendered

no such certification.

Starski says that the court failed to warn him about

authentication concerns when it ruled on the motion in limine; but

at oral argument in this court Starski's counsel conceded that

authentication issues were raised during the motion hearing. In

any event, the 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. Nor has the discrepant

missing stamp been adequately explained.

A savings clause in Rule 902 permits the court to relax

the authentication requirements, but one condition is that the

party so requesting show that it was "unable to satisfy" the rule's

requirements for authentication "despite . . . reasonable efforts." 

United States v. De Jongh, 937 F.2d 1, 4 (1st Cir. 1991) (quoting

Fed. R. Civ. P. 44 advisory committee note). Starski was able to

get other documents properly authenticated; and, if he made a

-6-
"reasonable efforts" proffer below, he does not develop that claim

on appeal.

The whole controversy has an opéra-bouffe air of

unreality. As Starski points out, Kirzhnev never denied to the

court that he had been convicted of bribery, although the jury was

not told of the fact. Conversely, the jury likely fathomed just

what Kirzhnev was doing to earn his own commission, whether or not

he was formally convicted of bribery; whether or not the jury drew

a negative inference from the conduct is unclear but, if not, it is

unclear that a formal conviction would alter its view.

Indeed, a trial judge untroubled by doubts about the

legal regime underpinning the conviction might well have admitted

the document and (we need not prolong the discussion) could likely

have found bases for doing so. For this somewhat more effort from

Starski in complying with the rules and attempting the requisite

showing would have been useful. In any event, the technical

authentication grounds for excluding the conviction were adequate

and we do not reach issues touching on Russia's legal regime.

Starski also argues that he should have been allowed more

latitude to cross-examine Kirzhnev as to the loss or destruction of

Kirzhnev's passport at his arrest, but Starski's counsel admitted

that the questioning would--and was in part designed to--introduce

inadmissible evidence of Kirzhnev's alleged crime through a "back

-7-
door" reference to his arrests. The district court fairly

concluded that such inquiries failed the Rule 403 balancing test.

Starski's second principal claim on this appeal is that

the district court abused its discretion in failing to impose

sanctions on Kirzhnev for misconduct in stalling the proceedings. 

Although Starski filed suit in January 2006, progress in the

litigation was delayed, first by service of process problems

apparently owing to Kirzhnev's incarceration, and then by a series

of incidents due to Kirzhnev's travels abroad, failure to

communicate with local counsel, and general lack of diligence.

Most important, on February 17, 2010--five days before

trial was set to begin--Kirzhnev filed an emergency motion

requesting a continuance on account of an emergency hospitalization

for back surgery in Russia. After a hearing, the district court

reluctantly granted the continuance, although it also requested

medical records to support Kirzhnev's story. Kirzhnev then

submitted two unsworn, unauthenticated letters signed by a Dr. A.V.

Sokolov--but with dissimilar-appearing signatures--purporting to

confirm Kirzhnev's hospitalization and surgery. 

Starski moved for sanctions against Kirzhnev, submitting

(among other things) a certified, authenticated letter from a

member of the Russian Duma reporting that the hospital where

Kirzhnev claimed he had surgery had no record of him as a patient

at the relevant time. Kirzhnev then testified that he had been at

-8-
the hospital for four or five days but had no back surgery. 

Starski asked the court to enter judgment against Kirzhnev as a

sanction for misleading the court, but the judge declined to rule

on the motion before trial.

After the jury rejected Starski's claims, the district

court allowed Kirzhnev to submit two unsworn statements from

friends, one a Duma representative and the other his family's

attorney, purporting to confirm Kirzhnev's stay in the hospital and

to describe visits to him there, although these hardly allayed all

doubts.2 Starski submitted more certified documents from a Duma

representative stating that no Dr. Sokolov worked at the hospital

in question during the relevant period.

Ultimately, the district court denied Starski's motion

for sanctions. Starski, 2011 WL 923499 at *11. Insofar as

sanctions were sought under Rule 11, the court rejected Starski's

request for failure to comply with the rule's "safe harbor"

provision requiring an opportunity for the opposing party to

withdraw the offending submission; but the court proceeded to the

merits by construing the request as one also invoking the court's

inherent powers. Id. at *9 (citing Aoude v. Mobil Oil Corp., 892

F.2d 1115, 1118 (1st Cir. 1989)).

2The letters both described purported visits to Kirzhnev in

the hospital but the two letters provided inconsistent dates for

when Kirzhnev supposedly entered the hospital--one said February

15, and the other February 16, while Kirzhnev himself said February

17 in his motion to supplement the record.

-9-
Without deciding whether Kirzhnev's actions amounted to

a fraud on the court, the judge denied the sanction of judgment

against Kirzhnev because any delays resulting from fraud were not

unduly prejudicial to Starski. Because the questions surrounding

Kirzhnev's hospitalization were "immaterial to the merits of the

dispute" and did not "generate an unfair resolution of the case,"

the court held there "was no manifest injustice at trial." 

Starski, 2011 WL 923499 at *10-11.

The court did, however, express "concern[] that Kirzhnev

appears to have procured potentially perjurious and fraudulent

statements designed to impede the Order setting this case for trial

on February 22, 2010," and ordered the parties to show cause why

the court should not refer the case to the U.S. Attorney's office

for investigation of possible contempt charges under 18 U.S.C.

§ 401(3). Starski, 2011 WL 923499 at *11; Starski, No. 06-10157-

DPW (Mar. 15, 2011) (order to show cause), ECF No. 126. Kirzhnev's

counsel advised us at oral argument that the matter was referred to

the U.S. Attorney's Office but nothing (as of yet) has resulted. 

In sanctioning "fraud on the court," consideration is

normally given to multiple factors-for example, the egregiousness

of the conduct, prejudice to the opposing party, the general policy

favoring adjudication on the merits, the need to maintain

institutional integrity, and deterrence of future misconduct. 

Aoude, 892 F.2d at 1118, 1120 n.3; Hull v. Municipality of San

-10-
Juan, 356 F.3d 98, 102-03 (1st Cir. 2004). Not surprisingly, the

district court's judgment is reviewed with considerable deference,

Mulero-Abreu v. P.R. Police Dep't, 675 F.3d 88, 91 (1st Cir. 2012).

The sanction Starski sought for the alleged fraud was a

default judgment on the merits against Kirzhnev, along with costs

and attorneys' fees. Because the judge reserved judgment pending

the trial, this sanction post-verdict would have entailed an award

to Starski on a contract claim that a jury had just rejected on the

merits. And, contrary to Starski's position on this appeal, there

is no showing that the delay in the trial had any likely effect on

the verdict. In fact, Starski had not opposed the continuance

based on the alleged hospitalization.

Starski argues that, if the trial had gone forward, he

might have been able to produce a witness, later unavailable, to

dispute prior testimony of Kirzhnev as to whether or not his son

lived in Connecticut between 2005 and 2007. This issue was

tangentially relevant to a pre-trial dispute about personal

jurisdiction, which Kirzhnev had ultimately conceded; was not

germane to the merits; and extrinsic testimony if offered to

impeach would have been excludable as collateral. United States v.

Beauchamp, 986 F.2d 1, 3 (1st Cir. 1993).

Further, Starski did not seek at trial to question

Kirzhnev about his supposed misstatement of his son's residence. 

Questioning Kirzhnev would not have offended the rule against

-11-
extrinsic evidence on collateral matters. Whether it would have

been permissible under a stipulation between the parties resolving

personal jurisdiction in Starski's favor but limiting evidence of

the dispute is less clear; but any limitations that applied would

have applied as well to an independent witness called by Starski.

Finally, to resolve clearly the question of whether

Kirzhnev had been in the hospital could easily have involved

complicated further proceedings involving foreign witnesses and

documents after an already protracted case that had finally been

resolved. Fiat justitia ruat caelum--let justice be done though

the heavens fall--is an important legal maxim, but it includes the

need to move on to the next case and provide justice to the next

litigant in line on a crowded docket.

Starski's third and last claim of error requires little

discussion. Starski says that Kirzhnev's company, DAI Synditrade,

was improperly dismissed from the lawsuit on summary judgment

entered by the district judge prior to trial. Our review is de

novo, Guay v. Burack, 677 F.3d 10, 15 (1st Cir. 2012), but the

summary judgment decision was manifestly harmless given Starski's

theory of DAI Synditrade's liability--that both Kirzhnev and the

company were bound by the same document--since the jury ultimately

rejected it as a valid contract.

In other words, Starski made no claim to evidence

implicating only the company or establishing a separate contract

-12-
that could cause a jury to reach a different result as between

Starski and the company. Thus, the result would necessarily have

been the same even if the company had remained a co-defendant.

Affirmed.

-13-