Opinion
Criminal Action No. 1:21-cr-83
2021-10-05
UNITED STATES of America v. Majed Talat HAJBEH
Danya E. Atiyeh, US Attorney, Seth Schlessinger, US Attorney, James Philip Gillis, US Attorney, United States Attorney's Office, Alexandria, VA, for United States of America. Muhammad Elsayed, Elsayed Law, PLLC, Vienna, VA, Brooke Sealy Rupert, Public Defender, Nathaniel Wenstrup, Public Defender, Office of the Federal Public Defender, Alexandria, VA, for Majed Talat Hajbeh.
Danya E. Atiyeh, US Attorney, Seth Schlessinger, US Attorney, James Philip Gillis, US Attorney, United States Attorney's Office, Alexandria, VA, for United States of America.
Muhammad Elsayed, Elsayed Law, PLLC, Vienna, VA, Brooke Sealy Rupert, Public Defender, Nathaniel Wenstrup, Public Defender, Office of the Federal Public Defender, Alexandria, VA, for Majed Talat Hajbeh.
ORDER
T. S. Ellis, III, United States District Judge
At issue in this criminal prosecution for transportation, receipt, and possession of child pornography is Defendant's Motion in Limine to preclude the Government from relying on Fed. R. Evid. 902(13) to authenticate certain evidence. Dkt. 106. Defendant's Motion in Limine relates to two notices filed by the Government pursuant to Rule 902(13). Dkts. 97, 103. This issue has been briefed and argued at a hearing on October 5, 2021. For reasons stated in this Order and from the bench at oral argument, Defendant's Motion in Limine must be granted.
Fed. R. Evid. 902 governs categories of evidence that are self-authenticating. The Government seeks to rely on Rule 902(13), which relates to "record[s] generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12)." The Government's notices pursuant to Rule 902(13) included affidavits from two FBI investigators, Agents Andrew Kochy and Brian Cooney, who performed "file extractions" on iPhones recovered from the Defendant's home. See Dkts. 97, 103. The Government seeks to authenticate images and videos extracted from the iPhones through the affidavits of Agents Kochy and Cooney under Rule 902(13).
Defendant's Motion in Limine objects to authentication of the iPhone contents on two grounds, arguing: (1) that the Government failed to meet the requirements of Rule 902(13) and incorporated requirements of Rule 902(11) and (2) that reliance on the affidavits of Agents Kochy and Cooney would violate Defendant's rights under the Confrontation Clause. With respect to the latter argument, the Confrontation Clause bars the admission of "testimonial hearsay" in a criminal prosecution when a defendant does not have an opportunity to cross-examine the hearsay's author or speaker. See Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). According to the Court, "testimonial hearsay" includes statements "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. " Melendez-Diaz v. Massachusetts , 557 U.S. 305, 311, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) (citing Crawford , 541 U.S. at 52, 124 S.Ct. 1354 ) (emphasis added). Defendant contends that the affidavits of Agents Kochy and Cooney constitute testimonial hearsay under Crawford and may not be presented without the opportunity to cross-examine them.
The Government responds that the Fourth Circuit and other federal courts of appeals have held that certain certificates of authenticity may be submitted pursuant to Rule 902(11) in the absence of testimony from the certificate's author without violating the Confrontation Clause. For example, in United States v. Denton , the Fourth Circuit rejected a Confrontation Clause argument with respect to record certifications from Facebook, Google, and Time Warner Cable. 944 F.3d 170, 184 (2019). Denton distinguished between "an affidavit created to provide evidence and an affidavit created to authenticate an otherwise admissible record" and held that, in the case of the latter, the Confrontation Clause does not give a defendant a right to confront a mere "records custodian." Id. at 183–84. Almost all of the other cases cited by the Government similarly relate to certificates prepared by custodians of business records. The lone exception is the Eighth Circuit's decision in United States v. Johnson , which held that the defendant did not have the right to confront the author of a certification that a copy of a "crime lab report was a true copy of the original" where the defendant had the opportunity to question the author of the original report. 688 F.3d 494, 505 (8th Cir. 2012).
See United States v. Clotaire , 963 F.3d 1288, 1294 (11th Cir. 2020) (involving records from a third-party institution, PNC bank surveillance and photos); United States v. Yeley-Davis , 632 F.3d 673, 677-78 (10th Cir. 2011) (involving records from a third-party institution, Verizon phone records); United States v. Adefehinti , 510 F.3d 319 (D.C. Cir. 2007) (involving records from a third-party institutions—banks and title companies—and relying on the fact that Rule 902(11) certificates were only used to admit documents acceptable as business records); United States v. Ellis , 460 F.3d 920 (7th Cir. 2006) (involving records from a third-party institution, hospital records, and specifically noting "[w]hether a statement was made with an eye toward prosecution, that is, with knowledge or for the purpose that it would be used later for prosecution, is an important aspect of delineating between testimonial and nontestimonial evidence").
The cases cited by the Government are readily distinguishable from this matter. Contrary to the Government's contention that the affidavits here are functionally identical to the certifications at issue in Denton and the other cases, Agents Kochy and Coonie are not mere "record custodians." Denton , 944 F.3d at 183. Rather, they are federal law enforcement agents tasked with investigating and preparing evidence against Defendant. As part of their forensic investigation, Agents Kochy and Coonie used sophisticated software (Cellebrite and GrayKey) to extract data from Defendant's iPhones. Unlike the business records at issue in Denton , both the underlying extractions and the affidavits by Agents Kochy and Coonie were prepared by law enforcement agents for the explicit purpose of "use at a later trial." Crawford , 541 U.S. at 52, 124 S.Ct. 1354. Thus, the affidavits directly implicate the concerns underlying the Confrontation Clause. See id.
Moreover, the affidavits fill an important evidentiary in gap in this matter: namely, to "establish that the [child pornography] exhibits are indeed portions of the contents of" Defendant's iPhones. See Dkt. 108 at 2. As a result, this case is closely analogous to the Supreme Court's decision in Melendez-Diaz v. Massachusetts , which found a Confrontation Clause violation when prosecutors presented to a jury "affidavits reporting the results of forensic analysis [by non-witness analysts] which showed that material seized by the police and connected to the defendant was cocaine." 557 U.S. 305, 307, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). In that case, the Supreme Court placed substantial weight on the fact that the analysts’ statements were "prepared specifically for use at petitioner's trial." Id. at 324, 129 S.Ct. 2527. Ultimately, the Court concluded that "under [the] decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth Amendment." Id. at 311, 129 S.Ct. 2527. Distilled to its essence, Melendez-Diaz holds that admission of an incriminating report summarizing a law enforcement official's forensic investigation without the opportunity to cross-examine the report's author violates the Confrontation Clause. Under Melendez-Diaz , Agent Kochy and Coonie's affidavits—which were specifically prepared for trial to establish that child pornography materials were extracted from Defendant's phone with forensic software—undoubtedly give rise to a Confrontation Clause issue.
Seeking to avoid the application of Melendez-Diaz , the Government stated at oral argument that it would be willing to use the affidavits for authentication purposes only and refrain from presenting them to the jury. But that representation does not cure the essential feature which renders the affidavits and underlying extractions "testimonial" under the Confrontation Clause: Agents Kochy and Coonie prepared those documents for the purpose of an impending criminal prosecution. See Crawford , 541 U.S. at 52, 124 S.Ct. 1354. And whether the affidavits are directly presented to the jury or simply serve the purpose of placing alleged images and videos of child pornography before the jury with the understanding that they are authentic files from Defendant's iPhones, they would serve an important role in establishing the Government's case against Defendant. Thus, reliance on those affidavits, without giving Defendant an opportunity to cross-examine Agents Kochy and Coonie about the forensic process of extracting files from Defendant's iPhones, would violate Defendant's rights under the Confrontation Clause. As a result, Defendant's other arguments need not be addressed, and Defendant's Motion in Limine must be granted.
Accordingly, the Government may not rely on the affidavits of Agents Kochy and Coonie to authenticate file extractions pursuant to Fed. R. Evid. 902(13). At oral argument, the Government indicated that it would be able to present Agent Coonie as a witness at trial. The Government may therefore elicit from Agent Coonie the testimony necessary to authenticate and admit the contents of the iPhone 8 from which Agent Coonie extracted files (including the process of extraction, results of extraction, and the chain of custody for extracted files). However, to the extent that the Government seeks to authenticate the results of Agent Kochy's file extraction from Defendant's iPhone 7, it must make arrangements to call Agent Kochy as a witness at trial.
Accordingly, for reasons stated in this Order and from the bench during oral argument,
It is hereby ORDERED that Defendant's Motion in Limine to Preclude the Government from Relying on Rule 902(13) Certificates (Dkt. 106) is GRANTED.