Recent Circuit Court Cases on Electronic Evidence

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1 Recent Circuit Court Cases on Electronic Evidence Daniel J. Capra Reed Professor of Law, Fordham Law School Questions about GPS Tracking th GPS Tracking; Reliability and Hearsay: United States v. Brooks, 715 F.3d 1069 (8 Cir. 2013): Appealing from bank robbery and firearms convictions, the defendant propounded a number of arguments for why evidence from a GPS tracking device attached to the money taken from the bank was improperly admitted. 1) Reliability: Prior to trial, Brooks challenged the overall accuracy and reliability of GPS technology under Federal Rule of Evidence 702 and argued that the Government's lay witness an at 3SI which administered the tracking device in this case possessed insufficient technical expertise to testify as to the underlying accuracy of GPS technology. The court found not error, concluding that Rule 702 was beside the point because the trial judge properly took judicial notice of the reliability of GPS tracking: [E]ven without expert testimony, Rule 201 permits the court to take judicial notice of a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. We cannot conclude that the district court abused its discretion in taking judicial notice of the accuracy and reliability of GPS technology. Commercial GPS units are widely available, and most modern cell phones have GPS tracking capabilities. Courts routinely rely on GPS technology to supervise individuals on probation or supervised release, and, in assessing the Fourth Amendment constraints associated with GPS tracking, courts generally have assumed the technology's accuracy. See, e.g., United States v. Jones, 132 S.Ct. 945, 963 (2012) (Alito, J., concurring) (noting that newer smart phones equipped with GPS devices permit more precise tracking than older devices); In re Application of U.S. for an Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel., 849 F.Supp.2d 526, 533 (D.Md.2011) ( [C]urrent GPS technology would almost certainly enable law enforcement to locate the subject cellular telephone with a significantly greater degree of accuracy possibly within ten meters or less. ). Further, Brooks provides no reason to undermine the district court's conclusion beyond his mere assertion that GPS technology is relatively new. Courts, however, have addressed the use of GPS technology for more than a decade. See, e.g., United States v. Lopez Lopez, 282 F.3d 1 (1st Cir.2002). 2) Insufficient foundation: Brooks argues that the Government's witness, a security service account executive, lacked sufficient scientific background to lay the proper foundation for the GPS 1

2 evidence from the particular device used in this case. But the court stated that the witness had been a senior account executive with 3SI for eighteen years. He had been trained by the company, he knew how the device worked, and he had demonstrated the device for customers dozens of times. See United States v. Thompson, 393 Fed.Appx. 852, (3d Cir.2010) (holding that the district court did not err in allowing a 3SI account executive who was trained in, experienced in, and had verified the functioning of GPS devices to provide lay testimony concerning the operation of the GPS device used in that case). Further, other evidence corroborated the accuracy of this GPS tracking device. The device was activated near the credit union just seconds after the robbery. The signal indicated that it then moved to the apartment parking lot where physical evidence and Haskins's testimony place Brooks at the time he allegedly stole the white van. Then, the signal reported that the device traveled along the same route where Officer Curtis saw the stolen van. Finally, police tracked the device and recovered it from inside a stack of money from the credit union at the same parking lot where they found Brooks. Brooks points to the brief lapse in the device's transmission as evidence of malfunction. However, as Boecher testified, objects such as tall buildings or tunnels could temporarily block the signal. Thus, we conclude that the district court did not abuse its discretion in concluding that the foundation laid in this case was sufficient. 3) Hearsay statements as to location: The court held that the trial court did not abuse its discretion in overruling Brooks's hearsay objection, because the GPS tracking reports fell under the business records exception. In this case, Boecher testified that as part of 3SI's regular course of business, when one of its customers activates a 3SI GPS device, the company routinely keeps the GPS data on the company server. Therefore, the court properly admitted the GPS evidence under the business records exception. See United States v. Wood, 2009 WL , at *4 (W.D.N.Y. July 15, 2009) (holding that GPS records satisfied the requirements of the business records exception). 4) Confrontation: The Court found no constitutional error in admitting the GPS tracking records as they were not testimonial. As a general matter, we have held that most business records under Rule 803(6) are non-testimonial statements to which the Confrontation Clause does not apply. The court noted that in Michigan v. Bryant, 131 S.Ct (2011), the Court declared that certain statements obtained in the course of a law enforcement investigation may nonetheless be non-testimonial. The question is whether the statements when made were primarily motivated to be used in a criminal trial. In this case, the GPS tracking reports similarly were used to track Brooks in an ongoing pursuit. Although the reports ultimately were used to link him to the bank robbery, they were not created for this purpose as Brooks contends. In other words, unlike the chemical analysis report in Melendez Diaz or the blood alcohol report in Bullcoming, the GPS reports were not created to establish some fact at trial. Instead, the GPS evidence was generated by the credit union's security company for the purpose of locating a robber and recovering stolen money. 2

3 Therefore, the GPS reports were non-testimonial, and their admission did not violate Brooks's Confrontation Clause rights. It should be noted that the hearsay and confrontation questions could have been answered in another, perhaps easier, way: The records were, according to the court, merely computer printouts of information generated by accepted technology. There was no human analysis... Thus they could have been analyzed as not hearsay at all, since machines don t make statements. And the Court in Crawford held that even if a statement is testimonial, it can only violate the Confrontation Clause if it is hearsay. st Authentication of GPS Tracking: United States v. Espinal-Almeida (1 Cir. 2012): The court affirmed the convictions of four defendants for conspiracy with intent to distribute and conspiracy to import cocaine. The case arose when a Puerto Rico police officer, who was also a member of a border protection task force, arranged to have an undercover boat containing undercover officers and conspirators meet a mother ship to transfer drugs to the undercover boat. The officer provided two individuals who pleaded guilty with coordinates to meet the mother ship and they entered those coordinates into a global positioning system (GPS). The Coast Guard intercepted the two boats after the drug exchange and obtained another GPS device from the mother ship that was admitted at trial. A customs forensic scientist retrieved the GPS data and used software from the manufacturer (Garmin) and Google Earth software to analyze where the mother ship had been at various times during the night of the drug transfer. The trial judge found GPS to be commonplace, but the court stated that [w]hile GPS technology is prevalent in our society, we are not convinced that the ability to read and plot coordinates from a GPS is as banal as the district court made it out to be, and we think a better foundation could have been laid for the GPS data and software generated maps. But the court found no plain error. It noted that an agent with extensive experience in GPS tracking explained at trial how GPS produces way points, routes, and tracks, and walked the jury through the GPS s data. The court concluded as follows: The record reveals that Durand offered a good amount of testimony about the processes employed by the GPS, the Garmin software, and the Google Earth software. He was not specifically asked, and did not precisely testify, whether the GPS and the software were in good working order or whether he was confident they produced accurate results. Nonetheless it is reasonable to infer that Durand would have said that the GPS and software were working fine and turning out accurate results. He showed no hesitation, and no concerns as to accuracy or reliability, when offering the GPS's data or when plotting it with the software. Furthermore, he spoke to the reliability of GPS technology in general that GPS devices can lose communication with satellites and that commercial GPS devices have an intentional margin of error. Also the fact that the GPS data and the software plotted courses were consistent with the location of the boat photographed by Cancel underscored the processes' accuracy. We are satisfied that the GPS data and software generated evidence were 3

4 adequately, if not extensively, authenticated. Business Records Certain records of internet activity sent to law enforcement found testimonial: United st States v. Cameron, 699 F.3d 621 (1 Cir. 2012): In a child pornography prosecution, the court held that admission of certain business records violated the defendant s right to Confrontation Clause. The evidence principally at issue related to accounts with Yahoo. Yahoo received an anonymous report that child pornography images were contained in a Yahoo account. Yahoo sent a report called a CP Report to the National Center for Missing and Exploited Children (NCMEC) listing the images being sent with the report, attaching the images, and listing the date and time at which the image was uploaded and the IP Address from which it was uploaded. NCMEC in turn sent a report of child pornography to the Maine State Police Internet Crimes Against Children Unit (ICAC), which obtained a search warrant for the defendant s computers. The government introduced testimony of a Yahoo employee as to how certain records were kept and maintained by the company, but the government did not introduce the Image Upload Data indicating the date and time each image was uploaded to the Internet. The government also introduced testimony by a NCMEC employee explaining how NCMEC handled tips regarding child pornography. The court held that admission of various data collected by Yahoo and Google automatically in order to further their business purposes was proper, because the data was contained in business records and was not testimonial for Sixth Amendment purposes. The court held, 2-1, that the reports Yahoo prepared and sent to NCMEC were different and were testimonial because there was strong evidence that the primary purpose of the reports was to prove past events that were potentially relevant to a criminal prosecution. The court relied on the following considerations to conclude that the CP Reports were testimonial: 1) they referred to a suspect screen name, address, and IP address and Yahoo did not treat its customers as suspects in the ordinary course of its business; 2) before a CP Report is created, someone in the legal department at Yahoo has to determine that an account contained child pornography images; 3) Yahoo did not simply keep the reports but sent them to NCMEC, which was under the circumstances an agent of law enforcement, because it received a government grant to accept reports of child pornography and forward them to law enforcement. The government argued that Confrontation was not at issue because the CP Reports contained business records that were unquestionably nontestimonial, such as records of users IP addresses. But the court responded that the CP Reports were themselves statements. The court noted that [i]f the CP Reports simply consisted of the raw underlying records, or perhaps underlying records arranged and formatted in a reasonable way for presentation purposes, the Reports might well have been admissible. The government also argued that the CP Reports were not testimonial under the Alito definition of primary motive in Williams. Like the DNA reports in Williams, the CP Reports were prepared at a time when the perpetrator was unknown and so they were not targeted toward a particular individual. The court distinguished Williams by relying on a statement in the Alito opinion 4

5 that at the time of the DNA report, the technicians had no way of knowing whether it will turn out to be incriminating or exonerating. In contrast, when the CP Reports were prepared, Yahoo personnel knew that they were incriminating: Yahoo s employees may not have known whom a given CP Report might incriminate, but they almost certainly were aware that a Report would incriminate somebody. Finally, the court held that the NCMEC reports sent to the police were testimonial, because they were statements independent of the CP Reports, and they were sent to law enforcement for the primary purpose of using them in a criminal prosecution. One judge, dissenting in part, argued that the connection between an identified user name, the associated IP address, and the digital images archived from that user s account all existed well before Yahoo got the anonymous tip, were an essential part of the service that Yahoo provided, and thus were ordinary business records that were not testimonial. Note: Cameron does not explicitly hold that business records admissible under Rule 803(6) can be testimonial under Crawford. The court notes that under Palmer v. Hoffman, 318 U.S. 109 (1943), records are not admissible as business records when they are calculated for use in court. Palmer is still good law under Rule 803(6), as the Court recognized in Melendez-Diaz. The Cameron court noted that the Yahoo reports were subject to the same infirmity as the records found inadmissible in Hoffman: they were not made for business purposes, but rather for purposes of litigation. It should also be noted that the Court s attempt to distinguish the Alito primary motive test is weak. The court relies on one sentence in Justice Alito s analysis, but the gravamen of that analysis is that there was no primary motive because the lab was not targeting a known individual. That is the same with the Yahoo CP reports. and the Business Records Exception: United States v. Cone, 714 F.3d 201 (4 th Cir. 2013): Two defendants were charged with a scheme to import and resell counterfeit pieces of computer networking equipment, some bearing the trademark of Cisco Systems, Inc.. The court held that the trial judge did not abuse discretion in admitting s from customers complaining that products were counterfeit and fake, reasoning that the s were admissible for the nonhearsay purpose of showing that the defendants were on notice as to the counterfeit nature of their goods. The court stated, however, that the judge erroneously told the jury that it could consider the s for their truth. The government argued that the s could have been admitted as business records, but the court was unpersuaded. The court noted that s present unique problems of recent vintage in the context of the business records exception. It elaborated as follows: Courts are in disagreement on whether s can and should fall under the business records hearsay exception. The business records exception assumes that records containing information necessary in the regular running of a business will be accurate and reliable. 5

6 , however, is typically a more casual form of communication than other records usually kept in the course of business, such that it may not be appropriate to assume the same degree of accuracy and reliability.... While properly authenticated s may be admitted into evidence under the business records exception, it would be insufficient to survive a hearsay challenge simply to say that since a business receives s, then ergo all those s are business records falling within the ambit of Rule 803(6)(B).... The district court s observation that the s were kept as a regular operation of the business is simply insufficient to establish a foundation for admission under Rule 803(6)(B). Computer Records Improperly Admitted to Prove the Truth of Information Supplied th by an Outsider to the Business: United States v. Blechman, 657 F.3d 1052 (10 Cir. 2011): The court affirmed the defendant s conviction on mail fraud and conspiracy charges. The scheme that led to the convictions was operated by another defendant, Yass, who temporarily halted home foreclosures by attaching foreclosure properties to fraudulent bankruptcy cases in order to take advantage of the automatic stay provisions of the Bankruptcy Code. Blechman s appeal argued that the trial judge abused discretion in admitting an AOL record that connected him to the address rablechman@aol.com and three PACER records revealing that he accessed fraudulent bankruptcy cases in Tennessee that were similar to the Kansas bankruptcies identified in the indictment. The court noted that it was undisputed the AOL and PACER records were hearsay because they were offered to prove the truth of the matter asserted: i.e., that Blechman was the registered owner of the address and was associated with the PACER account used to access federal court records. The court cited its prior decisions establishing that when a business record incorporates information provided by an outsider to the business, the general rule is that the information must itself fall within a hearsay exception to be admissible, unless the business has adequate verification or other assurance of accuracy of the information provided by the outsider. The court concluded that the trial judge abused discretion in admitting the records as business records given that neither AOL nor PACER made a meaningful attempt to verify the identity of the person who submitted information to them. The court found the error to be harmless, however, because it agreed with the government that other information presented at trial adequately linked Blechman to the account and the evidence regarding PACER access added little to the collective weight of other overwhelming evidence. Authenticity Questions Sufficient Authenticity Foundation for Web Chats: United States v. Lundy, 676 F.3d 444 6

7 th (5 Cir. 2012): The defendant was convicted of use of facilities of interstate commerce to attempt to entice a minor female into sexual activity the minor was of course a law enforcement agent posing as a young girl named Madison. The argued that it was error to admit evidence of chatroom discussions with Madison, because the government had failed to authenticate them. The trial court admitted the chats as well as a video which demonstrated how the law enforcement agent (Giroux) collected the chats (referred to as the Camtasia videos). With regard to the chat conversations, the court relied on case law from outside the circuit where a detective testifying that the transcripts were an accurate reflection of the chats was enough to authenticate. The court distinguished Slattery v. United States, 2005 WL , at *7 8 (N.D.Miss.), where the court found the chat conversations were not reliable because there was evidence of modification, and the person verifying the chats had a motive to change or alter the texts because it was suspected he was involved in the same pedophile scheme as the defendant in the case. The court noted that it is a stretch to compare the authentication provided by Giroux with the potential pedophile in Slattery and Giroux's testimony that the chats are as he recorded them is enough to meet the low threshold for authentication. With regard to the Camtasia videos the defendant noted that they were not recorded at the time of the incident but in 2010 in preparation for trial; the Yahoo software was different in 2006 versus 2010; in the video, Giroux types in a younger age into the account sign-up than he did in setting up the account that the defendant accessed. The trial judge permitted the videos to be shown but ordered any deviation from the 2006 procedure is going to have to be explained. The court found no abuse of discretion, finding that the problems [with the video] are not enough to undermine the low bar for authentication of evidence. The jury rejected them as implausible or irrelevant by convicting Lundy and implicitly accepting the veracity of Giroux's testimony regarding the chats. Finally, the defendant argued that there was inadequate authentication to prove that he was the one exchanging the text messages with Madison. But the court found that [w]hile some of the texts and phone calls were placed on other phones, the fact that Lundy was on the phone talking with Madison when he was arrested is enough to meet the low burden for authentication. After that, it was up to the jury to decide whether or not they believed Lundy's story that another person borrowed his phone, that Lundy had blocked Madison's number from texting him, and that he had called her at Cracker Barrel to figure out who the random person texting him was. Although these assertions strike us as implausible, that was up to the jury to decide. The jury heard and rejected this convoluted story and Lundy should not be able to turn what is in reality a sufficiency of the evidence argument into a lack of proper authentication argument. Screenshots of Website Were Properly Authenticated: United States v. Bansal, 663 F.3d 634 (3d Cir. 2011): The court affirmed two defendants convictions arising from their multi-national, internet-based scheme to distribute controlled substances. It held that the screenshots of one defendant s website, which included information about his online pharmacy operation, were properly 7

8 authenticated. The government obtained the images from a company called the Internet Archive, which runs a website called the Wayback Machine. That website catalogues all websites on the Internet. The government called a witness to testify about how the Wayback Machine website works and how reliable its contents are. The witness also compared the images with previously authenticated images that were admitted into evidence and concluded, based upon her personal knowledge, that the screenshots were authentic. Rule 606(b) th Jurors knowledge of computers: United States v. Budziak, 697 F.3d 1105 (9 Cir. 2012): In a child pornography case, two jurors made post-verdict statements to defense counsel that more computer savvy jurors may have speculated during deliberations as to whether the defendant reinstalled a program on his computer. The defendant moved for a new trial, which was denied by the trial court without a hearing. The court found that the trial court did not abuse discretion in ruling without a hearing. The court reasoned that the juror comments referred not to extraneous evidence, but to the jurors personal life experiences with computers and therefore the alleged juror conduct was not a legitimate subject of inquiry under Rule 606(b). 8