United States v. BakerUnited States v. Baker
A jury сonvicted Samuel Baker of possessing, receiving, and distributing child pornography in violation of
I
Yahoo! Inc. (Yahoo) discovered that someone using an e-mail аccount named “jmiller4012@yahoo.com” had posted forty-six images of child pornography to a group Web site called the “jokerswilder” that was hosted by Yahoo, but administered by members of the public. The jmil-ler4012 account had been created two days before Yahoo found that this account had been used to upload the child pornography images. Pursuant to
Rangel ultimately traced the jmiller4012 e-mail address to Baker. She first subpoenaed Yahoo to obtain its records regarding the jmiller4012 account, and Yahoo responded with the account’s details, including the date on which it was created and the Internet Protocol (IP) address used to create it. An IP address is a unique number. Testimony at trial reflected that it can be associated with a computer’s modem, but that for dial-up users like Baker, the IP address is not linked directly to a computer’s modem. A discreet range of IP numbers is assigned to dial-up Internet service providers, and Rangel traced the IP address she was given by Yahoo to Valley Telephone Coop. She then issued a subpoena to Valley Telephone, asking for subscriber information associated with the IP address she received from Yahoo. In response, Valley Telephone provided Baker’s name and residence address. Rangel then referred the case tо the Cyber Crimes Unit of the Texas Attorney General’s office, where it was assigned to Sergeant Dave Dodge.
Dodge reviewed the images and determined that he had probable cause to believe that Baker possessed child pornography in violation of section 43.26 of the Texas Penal Code. He prepared and signed an affidavit in support of a search warrant. Based on this affidavit, a magistrate judge issued a warrant to search Baker’s home and to seize all computer hardware, software, and peripherals believed to contаin child pornography. Officers executed the warrant the next day and took custody of Baker’s home comput
Baker was subsequently indicted on federal charges based on
Prior to trial, Baker filed a motion to suppress the evidence seized at his home. The district court held a hearing and denied the motion. A jury ultimately convicted Baker on all four counts. The district court sentenced Baker to 240 months in prison on each count, to be served concurrently; a supervised release term of life; and a special assessment of $100 for each count.
Baker appeals his conviction on several grounds. First, he contends that the district court erred in denying his motion to suppress the evidence obtained from his home. Second, Baker argues that the Government offered an insufficient eviden-tiary foundation for the court to admit two exhibits. Finally, Baker asserts that the district court erred by admitting these exhibits in violation of his Sixth Amendment right to confrontation. We first consider the issues surrounding the search warrant.
II
Baker contends that thе district court erred in denying his motion to suppress because, he asserts, Dodge gave false information or “showed a grossly reckless disregard for the truth” in his affidavit that served as the basis for the warrant obtained to search Baker’s residence and to seize his computer and other items. The affidavit Dodge submitted correctly identified the IP address Yahoo had said was associated with the jmiller4012 account, but the affidavit incorrectly stated that the IP address was the same one from which images of child pornography were uploaded to the jokerswilder Web site. Yahoo did not determine the IP address from which the images were uploaded. It only determined that the IP address at issue was associated with the jmiller4012 account at the time it was created. Baker contends that Dodge’s misstatement was intentional or was made with reckless disregard for the truth.
Baker’s brief in this court does not accurately reflect the procedural posture of this case with regard to this issue. The district court denied Baker’s pretrial motion to suppress. But the argument he presents on appeal regarding the warrant was not raised in that motion or аt any other time before, during, or after trial as a basis for suppressing evidence.
Baker’s pretrial motion to suppress challenged the search warrant on several grounds, including the fact that there were blanks in the affidavit that Dodge submitted in support of the warrant. Dodge prepared the affidavit on his office computer, which displayed the jmiller4012 e-mail address in blue. He printed the affidavit using a different computer and printer while he was in another county, just prior to presenting it to the magistrate. The printer left blank spaces in place of printing the items displayed on the computer screen in blue. Notwithstanding the
Baker first asserted that Dodge had made false statements in his affidavit at the conclusion of a sanctions hearing not pertinent here. At the end of that hearing, counsel for the parties began to discuss with the court whether Rangel would be a witness at trial. Baker’s counsel asserted that he needed her testimony to establish that Dodge had testified falsely at the suppression hearing and in his affidavit to obtain the search warrant. The district court directed counsel for Baker to identify the page and line of Dodge’s allegedly false testimony and to tie that to what Baker wanted Rangel to refute. Baker’s counsel said he would undertake to do so, but the record reflects no further proceedings in this regard.
At trial, Dodge admitted that he made incorrect statements in paragraph seven of the affidavit he submitted to obtain a warrant to search Baker’s home. Dodge testified that he knew Yahoo did not know the IP address or date of the uploads to the jokerswilder Web site and that Rangel had told him this. Dodge explained that his statements in paragraph seven indicating that the IP address used to create the account was “the same IP address that was used on Tuesday, October 19, 2004, when Suspect, [blank space], uploadеd 46 images of child pornography to the Yahoo group” was “a mistake” and an “error.” In response to repeated questions from Baker’s counsel, Dodge testified several times that he meant to say “e-mail address” instead of “IP address.”
Baker did not move to strike any evidence after this testimony was elicited. At the close of the government’s case, Baker moved for an acquittal under
We are aware that there is a division of authority among the circuit courts as to whether arguments not raised in a motion to suppress are waived or are merely forfeited and subject to plain-error review
1
Baker contends that the good-faith exception to the exclusionary rule does not apply because of Dodge’s false statements. Even assuming that Baker forfeited rather than waived his argument, he has not demonstrated that the district court plainly or otherwise erred in failing to find that Dodge intentionally or recklessly made erroneous statements in his affidavit. The affidavit was lengthy, detailed, and it recounted information obtained from Yahoo through the cyber tip and pursuant to a subpoena. Dodge testified that he made a mistake by referring to “IP address” rather than “e-mail” address. The district court did not plainly err in accepting this explanation.
Ill
Baker also contends that all four of his convictions should be reversed be
Baker assails the admission of Government Exhibits 3 and 8 on numerous grounds, arguing that the Government offered no predicate or foundation for their admission, that the NCMEC report is a law enforcement report that is inadmissible under Rule 803(8)(B) and (C) of the Federal Rules of Evidence, 7 and contending, for the first time on appeal, that admission of these exhibits without a witness with personal knowledge of their preparation and content violated his Sixth Amendment right to confrontation. Because we agree with Baker that Exhibits 3 and 8 were erroneously admitted without any foundation or predicate and thаt this error was harmful, we do not reach Baker’s other contentions.
Baker contends the Government presented no foundation for admitting the forty-six images that he allegedly uploaded. That complaint is a valid one. There was no competent evidence identifying the forty-six images or their filenames, contained respectively in Exhibits 3 and 8, as the forty-six images that Yahoo determined had been uploaded to the jokerswilder Web site from the jmiller4012 e-mail address. A witness from Yahoo testified at trial as the custodian of at least part of the “cyber tip” that Yahоo made, as required by law,
8
to the NCMEC. A printed copy of a two-page summary of the full NCMEC report and two internal Yahoo tracking documents were authenticated by a witness from Yahoo and entered into evidence as Government Exhibit 1 without objection. Exhibit 1 did not contain any images or filenames of images. The Yahoo witness testified at trial that Yahoo had determined that forty-six images that it
Baker objected to the admission of Exhibit 8, which, as noted, was a hard copy of the NCMEC report that contained the filenames of forty-six images, but not the images themselves, on the basis that there was no foundation for its admission. He also requested that he be permitted to voir dire the witness through which this exhibit was offered (Dodge), but the district court denied that request. Baker did not, however, object on the basis of improper foundation for the admission of printouts of the forty-six images, which comprised Exhibit 3. Accordingly, we review the admission of Exhibit 8 for abuse of discretion 9 and the admission of Exhibit 3 under the plain-error standard. 10
Baker contends that assuming, without conceding, the NCMEC report might otherwise have been admissible as a business record under Rule 803(6) or as a public record under Rule 803(8), the report was not authenticated. The Government does not address this argument. It instead appears to construe Baker’s complaint in this regard as a hearsay argument and merely asserts that the NCMEC report and the images from it are admissible as public records under Rule 803(8).
The Government’s position misses the mark. Regardless of whether Exhibit 8 falls within the ambit of Rule 803(6) or Rule 803(8), issues we do not resolve, the Government did not authenticate Exhibit 8, which is necessary as a predicate for admission under either rule. The means of authenticating records of regularly conducted activity under Rule 803(6) are found within that rule. 11 Various means of authenticating public records, including self-authentication, are contained in Rules 901 12 and 902. 13
In light of the record as a whole, we conclude that the district court erred by admitting Exhibit 8 over Baker’s objection that no foundation or predicate was offered. Although the issue is a close one, we cannot confidently say that this error was harmless. Exhibit 8 contains two lists of file names corresponding to images that Baker allegedly uploaded to Yahоo; it also states that the listed images “appear to contain child pornography.” The jury could have inferred from Exhibit 8 that Baker uploaded child pornography to Yahoo. In fact, Exhibit 8 — a report from the NCMEC — was the only evidence showing that Baker uploaded child pornography to the Internet; Exhibit 3 contained photographs of child pornography, but the photographs alone, taken out of context from the full NCMEC report, presented no evidence that Baker distributed pornographic files.
With regard to the admission of the child pornography images in Exhibit 3, “[t]o demonstrate plain error, [Baker] must show that the district court committed an error that was clear or obvious and that affected [Baker’s] substantial rights.” 14 We will only correct such an error if Baker can “show that the error has a serious effect on the fairness, integrity, or public reputation of judicial proceedings.” 15 The only source in the record of the child pornography images Baker purportedly uploaded was Exhibit 3. The sole authenticator and sponsor of that exhibit was Dodge. Although Dodge testified without objection at trial that the imаges in Exhibit 3 were the ones uploaded to the Yahoo Web site, it is clear from reading the record in its entirety that the witness had no personal knowledge of this fact. At other junctures during the trial, it was apparent that he obtained the images from other state law enforcement officers, and that his only basis for testifying that these images were the ones uploaded to the Yahoo Web site and sent by Yahoo to NCMEC was statements to that effect in the NCMEC report. Because the Government offered no witness competent to sponsor Exhibit 3, the admission of that exhibit was error.
Moreover, that error is plain. The sponsoring witness clearly had no first
Finally, we conclude that this error affected Baker’s substantial rights. An error affects substantial rights if it “affect[s] the outcome of the district court proceedings.” 16 The only source of the images that Baker purportedly uploaded to Yahoo was Exhibit 3, so this exhibit was essential to Baker’s Count 1 conviction for distributing child pornography. The error in admitting Exhibit 3 affected the “outcome” of the proceedings by leading to a conviction on Count 1.
The Government notes that twelve of the forty-six images from Exhibit 3 were also found on Baker’s home computer. But without Exhibit 3, no evidence shows that Baker uploaded these images to the Yahoo Web site as opposed to downloading them from that or some other Internet source. Because the evidence, other than Exhibit 3, to support the conviction for distributing child pornography was thin, at best, the error in admitting Exhibit 3 affected Baker’s substantial rights.
Wе also conclude that this error had a “serious effect on the fairness, integrity, or public reputation of judicial proceedings.”
17
In
United States v. Avants,
the district court suppressed before trial highly incul-patory statements by the defendant.
18
The district court then stayed proceedings pursuant to
The Government asserts that its Exhibits 3 and 8 “were entirely derivative and cumulative,” but the record simply does not bear this out. Regarding the upload, other than the two challenged exhibits, the record contains only Government Exhibit 1, a two-page summary of the'NCMEC report. But that exhibit did not contain any images or file names of any images. The sole source in the record of the images that Baker was accused of distributing by uploading to the Yahoo jokerswilder Web site was Exhibit 3.
Because the admission of Exhibit 8 was harmful error, and because the admission of Exhibit 3 was plain error, we vacate Baker’s conviction on Count 1. We reject, however, Baker’s argument that the admission of those two exhibits requires
Because of our disposition of this case, we do not reach Baker’s contention that admitting the NCMEC report without a witness who had personal knowledge of its content or preparation violated his Sixth Amendment right to confrontation.
* * *
For the foregoing reasons, we REVERSE Baker’s conviction on Count 1 (distributing child pornography), and AFFIRM Baker’s convictions on Counts 2, 3, and 4 (receiving and possessing child pornography). Because the district court imposed a special assessment for Count 1 pursuant to
Notes
.
Compare United States v. St. Pierre,
.
.
.
Pope,
. Id. at 920 n. 20 ("Even were we to regard Pope's argument as merely forfeited and subject the district court's decision to plain error review, we would find no such error.”).
.
.
.
See
.
United States v. Guidry,
.
See United States v. Thompson,
.
.
See, e. g., id.
Rule 901(b)(7) ("Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a
.See, e. g., id. Rule 902(2) (describing authentication of "Domestic public documents not under seal”); Rule 902(4) (describing authentication by presenting certified copies of public records).
.
See Thompson,
. Id.
.
United States v. Olano,
. Id.
.
. Id.
at 522 (quoting
Johnson v. United States,
. Id.