JOHN A. WOODCOCK, JR., Chief Judge.
Claiming the admission at trial of digital images and reports generated by the National Center for Missing and Exploited Children (NCMEC), Yahoo!, and Google would violate the Confrontation Clause of the United States Constitution and Rule 803(6) of the Federal Rules of Evidence, James Cameron moves in limine to exclude these exhibits. Based on the submissions of the parties, the Court dismisses Mr. Cameron's motion because it preliminarily concludes that the contested reports and attachments are not inadmissible as business records and their admission as business records would not violate Mr. Cameron's Sixth Amendment rights. Since the Court's ruling is preliminary only and is subject to the evidence the Government presents at trial, the Court dismisses the Defendant's motion without prejudice.
On February 11, 2009, a federal grand jury indicted James Cameron for transporting, receiving, and possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(1), 2252A(a)(2), 2252A(a)(5)(B), and 2256(8)(A). Indictment at 1 (Docket # 3). On July 2, 2010, Mr. Cameron moved in limine to exclude from trial digital images and other related material derived from Yahoo!, Google, and the National Center for Missing and Exploited Children (NCMEC). Defense Mot. in Limine Seeking Exclusion of Digital Images and Related Materials Derived from Yahoo!, Google, and NCMEC Sources (Docket # 137) (Def.'s Mot. in Limine Doc. Evid.). The Government responded on July 13, 2010. Government's Mem. of Law in Opp'n to Def.'s Mot. in Limine Seeking Exclusion of Digital Images and Related Materials Derived from Yahoo!, Google, and NCMEC Sources (Docket # 140) (Gov't's Opp'n in Limine Doc. Evid.). On July 19, 2010, Mr. Cameron replied. Defense Reply to the Government's Opp'n to Exclusion of Digital Images & Related Materials as Trial Evidence (Docket # 145) (Def.'s Reply in Limine Doc. Evid.). The Court held oral argument on July 29, 2010. (Docket # 151).
Pursuant to a mandatory reporting requirement in 18 U.S.C. § 2258A, Yahoo! made twelve reports to NCMEC that Yahoo! had detected the transmission of child pornography by Yahoo! subscribers to Yahoo! photo albums. Def.'s Mot. in Limine Doc. Evid. at 6-7. An investigation followed. Id. at 7. NCMEC transmitted a report of its findings with attached digital materials to Maine law enforcement authorities and as a consequence, five search warrants were issued: two state search
Mr. Cameron divides the Government's anticipated evidence into two categories based on source.
Mr. Cameron sets forth several arguments for why the digital images and other material from Yahoo!, Google,
Mr. Cameron argues that the contraband images seized by Yahoo! must be excluded because
Def.'s Mot. in Limine Doc. Evid. at 15. For support, he cites Melendez-Diaz v. Massachusetts in which the Supreme Court concluded that a defendant had a Sixth Amendment right to confront state laboratory analysts who had certified that a substance found in his possession was cocaine. ___ U.S. ___, 129 S.Ct. 2527, 2542, 174 L.Ed.2d 314 (2009). Mr. Cameron compares the Yahoo! technicians in this case to the forensic analysts in Melendez-Diaz. Id. at 15-16. Like the absolute right of a defendant "to cross-examine a forensic analyst whose work incriminated the defendant [with] forensic reports created in the `regular course of business[,]'" Mr. Cameron argues that he has the absolute right to cross-examine the Yahoo! technician(s) who gathered the evidence against him because "[t]here is little reason to believe that confrontation will be useless in testing [an] analyst's honesty, proficiency, and methodology" when there may be a deficiency in judgment or lack of proper training that could be uncovered from cross-examination. Id. (quoting Melendez-Diaz, 129 S.Ct. at 2537-38). Mr. Cameron also argues that
Def.'s Mot. in Limine Doc. Evid. at 16-17.
The Government responds that the Sixth Amendment Confrontation Clause is not applicable to Yahoo!'s records because, like telephone or bank records, the records are non-testimonial business records. Gov't's Opp'n in Limine Doc. Evid. at 11-13. Also, the Government argues that "[s]tatements attributable to the defendant in the Yahoo! records and emails are not hearsay" because "[a] party's own statement is directly admissible against him." Id. at 14 (citing United States v. Matlock, 415 U.S. 164, 172, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Fed.R.Evid. 801(d)(2)(A)).
The Confrontation Clause of the Sixth Amendment guarantees an accused in a criminal proceeding the right "to be confronted with the witnesses against him[.]" U.S. CONST. amend. VI; Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); United States v. Alvarez, 987 F.2d 77, 82 (1st Cir.1993). Under the Confrontation Clause, an accused has the right to cross-examine adverse witnesses to test "the believability of a witness and the truth of his testimony." United States v. Carty, 993 F.2d 1005, 1009 (1st Cir.1993) (quoting Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)); Alvarez, 987 F.2d at 82 (quoting Kentucky v. Stincer, 482 U.S. 730, 736, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987)).
The First Circuit recently addressed the status of Confrontation Clause jurisprudence in United States v. Figueroa-Cartagena, 612 F.3d 69 (1st Cir.2010). The First Circuit observed that the Supreme Court decisions in Crawford v. Washington
Fortunately, in Crawford, the Supreme Court resolved the question of whether records that are admissible under Rule 803(6) subject to a Confrontation Clause challenge. The Crawford Court stated that "[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial—for example, business records.. . ." 541 U.S. at 56, 124 S.Ct. 1354. As Chief Justice Rehnquist explained in concurrence:
As illuminated by Crawford and the First Circuit, the question becomes whether the Yahoo! records are business records under Federal Rule of Evidence 803(6). In this respect, what would otherwise be a commonplace evidentiary ruling becomes "suffused with constitutional hues." 5 Joseph M. McLaughlin, Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence Second Edition § 802.04[3][b] (2d ed. 2010) (Weinstein). Thus narrowed, the battle line is drawn: Mr. Cameron insists the Yahoo! records are not admissible as business records and the Government maintains they are.
The Court turns to Federal Rule of Evidence 803(6).
To be admissible under Rule 803(6), the proponent of a business record must meet several requirements.
Mr. Cameron strenuously contends that the Government will not call as a foundational witness any of the technicians who actually performed the Yahoo! search of Mr. Cameron's Yahoo! account. Instead, the Yahoo! witness will be someone familiar with how Yahoo! goes about such searches, but not someone familiar with how Yahoo! went about this one. Def.'s Mot. in Limine Doc. Evid. at 13-14 (stating that the Government will not call the technicians "to testify about how, when and where each of the images was found, collected and preserved for litigation").
The Government responds that its Yahoo! records witness "will establish that the Yahoo! records were kept in the course of a regularly conducted business." Gov't's Opp'n in Limine Doc. Evid. at 14. It says the witness will testify that pursuant to a warrant, Yahoo! produced "among other evidence, electronically stored emails, address books, friends lists, and
At this point, the Court cannot make a final determination but it readily concludes that the proffered foundational testimony of the Government's qualified expert is sufficient to survive pretrial attack. A key inquiry under Rule 803(6) is whether the "the source of the information or the circumstances of preparation indicate lack of trustworthiness." Fed.R.Evid. 803(6). The First Circuit has ruled that "it is well established that the [qualified] witness need not be the person who actually prepared the record." Wallace Motor Sales, Inc. v. Am. Motors Sales Corp., 780 F.2d 1049, 1061 (1st Cir.1985). Here, the Government need not call each of the technicians who did the search so long as it presents a witness who "can explain and be cross-examined concerning the manner in which the records are made and kept." Id. Similarly, in Wallace Motor, the First Circuit concluded that the president and sole stockholder of a company was a qualified witness although the records were created under his supervision, id., and in United States v. McGill, the Circuit Court found that the assistant supervisor of a bank's coupon collection department was a qualified witness. 953 F.2d 10, 12 (1st Cir.1992). It remains to be seen what testimony the Government adduces at trial and how well the Yahoo! witness withstands cross-examination but the Government has withstood this initial challenge.
Nor is the Court convinced that Mr. Cameron's argument against the admissibility of the Yahoo! records truly implicates the Confrontation Clause. Whether the Government will satisfy the foundational requirements for admission at trial requires a straightforward application of the rules of evidence. If the Yahoo! witness has sufficient knowledge to satisfy the Rule 803(6) requirement of a qualified witness, the Yahoo! records will be admitted; if not, they will not. But the attempt to cloak Mr. Cameron's foundational objection as a Confrontation Clause issue fails.
Mr. Cameron urgently presses the notion that to be deprived of the right to cross-examine the technicians who did the Yahoo! searches for these documents constitutes a violation of the Confrontation Clause. His objection does not, however, go to the admissibility of the records themselves, only the foundation for their admission. In other words, Mr. Cameron does not contend that he should be permitted to cross-examine the people who created the images and writings. Such an objection would necessarily fail because the Supreme Court has concluded that the business records exception does not raise Confrontation Clause issues.
Instead, he contends that he should be allowed to cross-examine the people who searched for the Yahoo! records. Here, he faces Rule 803(6) requirements, not Confrontational Clause issues. Generally, the courts have broadly interpreted Rule 803(6)'s "qualified witness" requirement, Weinstein § 803.08[8][a], and the Government is confident it can fulfill its foundational obligations through the Yahoo! witness. If the Government fails to sustain its burden, the penalty is self-executing: exclusion—not because of the Confrontation Clause of the United States Constitution, but because of the foundational requirements of the rules of evidence. The
In an argument similar to the one made about the Yahoo! reports, Mr. Cameron argues that the contraband images attached to the NCMEC reports should be excluded from evidence at trial because
Def.'s Mot. in Limine Doc. Evid. at 18.
The Government responds that the NCMEC reports and attached images are admissible as business records that only require a record custodian or otherwise qualified witness to authenticate. Gov't's Opp'n in Limine Doc. Evid. at 16. Like the Yahoo! records, the Government maintains that the NCMEC reports and attachments are non-testimonial. Id. The Government's use of the NCMEC records is to "establish the chain of custody of the evidence. . . from Yahoo! to the NCMEC to the Main State Police Computer Crimes Unit." Id. at 16. A record custodian or other qualified witness is sufficient to authenticate the records because "[i]ndividuals whose testimony is relevant in establishing a chain of custody do not need to appear as witnesses." Id. (citing Melendez-Diaz, 129 S.Ct. at 2532 n. 1). Moreover, the Government argues that "Rule 803(6) does not require the business which has custody of the records to be the business which created the records." Id. (citing United States v. Doe, 960 F.2d 221, 223 (1st Cir.1992)).
Mr. Cameron's argument on the inadmissibility of the NCMEC reports and its attachments at trial fails for the same reasons his argument on the inadmissibility of the Yahoo! records failed. As non-testimonial hearsay, the NCMEC records and attachments may properly be admitted under Rule 803(6) because they were "(1) made or based on information transmitted by a person with knowledge at or near the time of the transaction; (2) made in the ordinary course of business; and (3) trustworthy. Moore, 923 F.2d at 914-15 (internal quotation marks omitted).
Mr. Cameron also argues that the NCMEC reports should be excluded at trial because the reports "were specifically created pursuant to 18 U.S.C. § 2258A, for law enforcement' and/or `evaluative' purposes," and therefore are inadmissible under Federal Rule of Evidence 803(8)(B).
Gov't's Opp'n in Limine Doc. Evid. at 16. Also, like the booking sheet at issue in United States v. Dowdell, 595 F.3d 50, 72 (1st Cir.2010), or the immigration I-213 Form at issue in United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir.2010), "the NCMEC Report contains routine information prepared in a non-adversarial setting" that is admissible even if the records have "an incidental or secondary use in furthering a prosecution." Gov't's Opp'n in Limine Doc. Evid. at 17.
Mr. Cameron's argument to exclude the NCMEC reports from evidence at trial on the grounds that they violate Rule 803(8) is without merit. He is correct that pursuant to Federal Rule of Evidence 803(8), "police reports [generally] may not be admitted when offered by the government in a prosecution against the defendant." United States v. Carneglia, 256 F.R.D. 384, 391 (E.D.N.Y.2009) (citing United States v. Oates, 560 F.2d 45, 77 (2d Cir.1977) (discussing the intent of the Federal Rules of Evidence "to render law enforcement reports and evaluative reports inadmissible against defendants in criminal cases")); Fed.R.Evid. 803(8). However, Rule 803(8) does not apply to the NCMEC reports because the NCMEC is a private organization. See footnote 9 above.
Even if the NCMEC reports are considered reports compiled by law enforcement personnel, they are still admissible because they were compiled for non-adversarial purposes. The Eighth Circuit found that "reports not containing matters observed by officers in an adversarial setting do not fall within the exclusion to Rule 803(8)(B)." United States v. Enterline, 894 F.2d 287, 290 (8th Cir.1990). In reaching this holding, the Enterline Court reasoned that Rule 803(8) did not apply to a computer report because the report
Id. Like the report in Enterline, the NCMEC reports contain computer records and facts, which are forwarded in an unedited condition to local law enforcement agencies. Accordingly, the NCMEC reports
The Court DISMISSES Mr. Cameron's Motion in Limine Seeking Exclusion of Digital Images and Related Materials Derived from Yahoo!, Google, and NCMEC Sources (Docket # 137) without prejudice.
SO ORDERED.
Def.'s Mot. to Supp. at 6 n. 10 (Docket # 138). He continues that "[t]he government has not been relieved of its obligation to follow the usual procedures when introducing the results of a Section 27-3(g) search warrant execution into evidence[.]" Id.
