*1 conspiracy in a participated Hernández board the weapon a was on fact that drugs. He very large was the amount of boat, import fact that Hernández brought captain of the boat the michera. captain of (cid:127) sentence, also at drugs over. His those hazy recollection Hernández’s bottom of the Guidelines the absolute aside, is no merit to his there the record range, is defensible. of a defendant’s impact argument. court did not abuse Again, consideration the district society proper is a crimes on See, e.g., sentence was sentencing court. United discretion. Hernández’s its for (1st 52, Pulido, Cir. substantively 566 F.3d reasonable. v. procedurally States 2009) where the district (finding no error danger that defen Error K. Cumulative emphasized
court society); posed United crimes dant’s ef Espinal argues that the cumulative (1st Gilman, 440, 447-48 v. 478 F.3d States respective alleged errors he fect of the Cir.2007) based in (affirming a sentence did not find require reversal. Because we consideration of on the court’s part complaints, it any merit in of his individual society by defendant’s con caused to harm of course follows that there was no re duct). an abuse of discretion It was not verse-worthy cumulative error. See Unit rely on this factor. the court to (1st Brown, 669 F.3d ed States v. argument .2012). final fares Hernández’s Cir supposed He faults the court’s
no better. unspecified mitigat to consider reluctance III. CONCLUSION to be assume Hernández ing factors. We consideration, find no thorough After arguments he made referring to the claims of any merit to of the defendants’ partici that he was a minor sentencing; The convictions and sentences error. a crime not been convicted of pant and had defendants are affirmed. all four The record reveals years. in seventeen in fact consider these the court did outweighed oth factors and found them considerations, very especially most
er drugs involved. The
large amount of heavily more weigh
court’s decision than of the offense rather seriousness America, STATES UNITED within its dis mitigating factors was well Appellee, Zapata, States v. cretion. See United Cir.2009) (1st (stating that the na emphasize CAMERON, Defendant, “court’s decision to M. James fac mitigating over the ture of the crime Appellant. that is not a emphasis tors was a choice of No. 11-1275. sentencing claim of
basis for founded error”) (internal marks and cita quotation Appeals, United States Court omitted). tion First Circuit. end result of Hernández avers that the 8, May 2012. Heard was an unreason- supposed
these errors Nov. Decided there disagree. As able sentence. We ra- plausible there is a Espinal, was with handed down. the sentence
tionale for *6 Horstmann,
Peter Charles with whom Partridge, Horstmann, Ankner & was on brief appellant. for Anthony Vitarelli, Assistant United States Attorney, Division, Criminal Appel- Section, late Breuer, with whom Lanny A. (Counts Six, Nine, General, Seven, Ten, D. Bu- tion Attorney John Assistant Twelve, Thirteen, Fifteen), retta, Attorney and but not as Deputy Assistant Acting (Counts One, Three, Four, General, II, Five, Delahanty E. to others Thomas United Fourteen). Eleven, D. and thus reverse Attorney, Margaret and McGau- We States Attorney, Cameron’s convictions on certain States counts Assistant United ghey, or a re-sentencing, and remand for new appellee. on brief for pro- trial if the wishes to so TORRUELLA, HOWARD, and Before ceed. THOMPSON, Judges. Circuit Background I. TORRUELLA, Judge. Circuit Dis- Following a bench trial U.S. Regulatory A. Business Back- Maine, De- for the District of trict Court ground M. James Cameron
fendant-Appellant delving particular Before into facts (“Cameron”) was convicted thirteen case, Cameron’s recite some back- involving pornogra- counts for crimes ground regarding technologies, facts challenging now appeals, phy. practices, regulations business issue rulings by the district court before various here. challenged rulings after trial. The (“Ya- 2007, Yahoo!, Inc. During 2006 and (1) the denial of a motion to dis- include: (which hoo!”) has offered a service since insufficiency for miss the indictment discontinued) called been “Yahoo! Photo” venue, States v. Cam- United improper upload that allowed users to photographs (Cameron I), eron F.Supp.2d the Internet. Users then could share (2) (D.Me.2009); of a the denial motion other photographs with Yahoo! Photo allegedly seized in viola- suppress evidence Each Yahoo! Photo album was users. Amendment, United Fourth tion a particular linked to Yahoo! “user” or (Cameron II), States v. Cameron turn, “account.” each “account” was (3) (D.Me.2010); F.Supp.2d the denial *7 (sometimes designated “Login a Name” of a motion in limine certain exclude referred as a “username” “screen grounds, Clause evidence on Confrontation name”), “lilhotteeOOOOO,” of such as one (Cameron III), v. Cameron United States screen at issue in this case. A names (4) (D.Me.2010); F.Supp.2d multiple user use other Ya- might Yahoo! of por- of the number child calculation Photo, in Yahoo! hoo! services addition to nography attributable such as email. sentencing purposes. for questions complex person This of a created a Yahoo! presents case Whenever account, regarding first this Circuit Yahoo! recorded certain informa- impression tion, admissibility of of some of which was automati- captured evidence the wake cally Confrontation and some of which was entered Supreme Court’s recent account. person After careful re- who created the jurisprudence. Clause One view, piece automatically of information that we conclude that the admission “Registration IP collected was the Ad- certain evidence violated Cameron’s Con- dress,” rights. We further con- which was Internet Protocol frontation Clause (“IP”) this from which the account was address clude that admission automatically Yahoo! also re- as to counts of convic- created.1 was harmless some signed every internet. An unique as- machine on the 1. “An address is the address IP “cyber a operation tip- the date and time which the functions is corded account created. Yahoo! recorded this ... provide pro- line to electronic service Management in an “Account information viders an effective of reporting” means Tool,” for a maintained the life of pornography child and other Internet-re- Further, whenever a Yahoo! account. user targeting lated crimes children. Id. account, Yahoo! auto- logged into Yahoo! 5773(b)(1)(F). “cyber § tipline” NCMEC’s matically recorded the date and time of the called the “CyberTipline.” Once well as the IP from which login as address of a report possible NCMEC receives login occurred. Yahoo! stored this child pornography crime via CyberTip- in a Tracker.” The “Login information line, it appropriate determines “the inter- that, during indicates the relevant record Federal, national, State or local law en- login period, kept time records in agency investigation” forcement for Login sixty days. its Tracker for report agency. forwards the to that Id. During period, Google, the same time (also (“Google”) provided
Inc. a service B. Yahoo! to NCMEC discontinued) since “Google called Hello.” 15, 2007, On March Yahoo! received an Google sign Hello allowed users to in with anonymous report that pornography child a username and then chat and trade pho- images were contained a Yahoo! Photo tos other with users over the Internet. belonging account to a with the user user- Google automatically maintained records “lilhottyohh.” name The record does not a user indicating logged times which knew, indicate that Yahoo! or ever at- Hello, into out of Google as well as the out, tempted to find who made the anony- IP address from which user accessed report. response mous to the anony- (“Google the service Hello Connection tip, personnel mous searched the Logs”). “lilhottyohh” account and discovered im- time, At the relevant businesses such as they ages that pornog- believed to be child (and Google and Yahoo! had still have to raphy. It is known which Yahoo! em- day) duty to report apparent ployee conducted the search. violation federal child laws Yahoo! had an process established for to the National Center for Missing dealing with (“NCMEC”). pornography. Exploited Children See If Yahoo! learned of 13032(b)(1) (1998) § U.S.C. (creating a re- account, an employee in duty Yahool’s Cus- porting any entity “engaged in Department tomer Care temporarily *8 re- providing electronic communication ser- moved the content from public vice or a remote view and computing service to the If public, through reviewed it. he or she facility a means determined that or of inter- commerce”) (current the account foreign pornography, state or contained child ver- 2258A(a)(l) (2012)). § sion 18 Yahoo! deactivated U.S.C. the account and noti- Legal Meanwhile, is a fied non-profit organization Department. NCMEC the annual the grant Congress Department receives an Customer Care to created an perform various pre- images functions related to archive of all the associated with venting exploitation account, the of the including children. See the date and time 5773(b) (2012). § 42 Among U.S.C. each image uploaded these was the IP ad- IP separated (quoting address consists of four numbers Vázquez-Rivera, United v. States dots, e.g., (1st Cir.2011)). 166.132.78.215.” United States n. (1st Kearney, Cir.2012) 672 F.3d n. 1 to each Login If the ment Tool and Tracker CP uploaded. it was from which dress a agreed Yahoo! sent CP Re- Report. Whenever Legal Department NCMEC, it then sent an pornography, automatically were child to port Cy- NCMEC via the report to electronic a The included a receipt. receipt stored (“Yahoo! Re- berTipline. report Each CP report by unique assigned number the “Suspect a or listed port” Report”) “CP and a record what Yahoo! NCMEC Name,” Email Ad- “Suspect Screen NCMEC, including the attach- reported to URL,”2 dress,” “Suspect and a “Suspect Report. ments the CP “Suspect IP IP The Address” Address.” case, Report In this Yahoo! sent CP the IP that Yahoo! “associat- was address “lilhottyohh” child in the pornography user; with the it is not clear from ed” Subsequently, account to NCMEC. Ya- IP this address was record whether Reports sent additional CP hoo! IP Address” stored in “Registration child found in the NCMEC of Tool, if Management or it was Account of the users “lilhotteeOOOO”and accounts argue, could other IP address. One some All three Reports “harddudeOOOO.” CP trial, seemed to do at as IP “Suspect the same Address”: listed it IP from which the is the address 76.179.26.185. account, image uploaded last onto “Suspect IP CP some Computers Cameron’s C. ICAC Seizes “Registra- from the Address” is different IP in the Account tion Address” contained 3, 2007, NCMEC sent a re- August On Management Tool for the same account. (“CyberTipline Report”) por- of child port Ya- “Suspect Email Address” was the nography found the “lilhotteeOOOOO”Ya- hoo! email Yahoo! user address Maine hoo! account to the State Police to, Report “Suspect and the pertained CP Against Internet Crimes Children the Internet location where URL” was (“ICAC”) unit. later sent anoth- NCMEC photos be found. user’s could ICAC, this CyberTipline Report er time pornography found in the regarding child Report Each also included a table CP Yahoo! Photo account user “hard- pornography images being listing the Both CyberTipline Reports dudeOOOO.” sent with the Yahoo! attached report. Address, 76.179.26.185, IP listed same pornogra- report suspected each “Suspect Information” section. For each child phy images. report IP in- “[t]he Each also noted that image, the date and time at Yahoo! listed report is the most recent file cluded image uploaded and the IP which the available,” (“Im- image upload IP then uploaded address from which was Data”). addition, and time of the most recent Yahoo listed date age Upload Manage- upload.3 data from the Account attached case, Moreover, IP each purposes the Address contained in For of this under- 3. ("URL”) CyberTipline matched the stand a Uniform Resource Locator *9 string specifies "Suspect contained in its corre- IP Address” to be the of characters that although Report, we do sponding Yahoo! CP on the Internet. For location of document pure by whether this is coincidence example, web- not know the URL for First Circuit’s (at really "http:// refer to the writing) or if both IP Addresses the time of this site originated computer the most recent im- www.cal.uscourts.gov”. are distinct URLs earlier, upload. age As we mentioned IP identifies a from IP addresses. An address Internet, whether the computer did not state particular Yahoo! CP on but documents, "Suspect contained therein computer might multiple IP Address” host image one which the most recent might URL. from each which have their own
ICAC detective Laurie Northrup send and receive child pornography im- (“Northrup”) determined that the ages. IP ad- Bradeen found child pornography dress part 76.179.26.185was of a pool of IP images on Cameron’s Dell laptop and on Warner, addresses that Time an Internet his HP desktop. Bradeen found no child (“ISP”), Service Provider distributed its pornography on the Compaq or on desktop Internet access customers. Through a the eMachines desktop. However, In- subpoena Warner, to Time Northrup de- ternet history stored on the eMachines termined that the IP address 76.179.26.185 desktop showed that someone had execut- had been assigned to the Cameron resi- ed Internet searches for terms related to Hallowell, dence in during Maine the rele- pornography. periods.
vant time 21, 2007, On December D. ICAC Search Warrants police Maine executed a search warrant at Yahoo! Google the Cameron residence. Officers found computers four at the residence: a Com- ICAC subsequently served search war- paq desktop, a Dell an HP laptop, desktop rants on for Yahoo! information about the with drive, external hard and an eMa- Yahoo! accounts that had been accessed chines desktop with an external hard from computers. Cameron’s pro- data drive. ICAC also executed war- search duced Yahoo! in response to the search rant Cameron’s workplace and seized warrants included emails that had been his office computer. ICAC’s preliminary sent to and from those accounts. The examination of the computers Camer- emails indicated that on at least one occa- (conducted on’s site) home sion, indicated using someone the “harddudeOOOO” possible child pornography on the HP Yahoo! account sent child pornography to desktop. This examination also indicated another individual via email and received that certain Yahoo! accounts had been ac- child pornography via email in response. cessed from the eMachines Yahoo! computer. also produced the receipts of its Northrup requested later Yahoo! Reports NCMEC, information from the “Account NCMEC related to Management Tool,” these accounts. and the “Login Track- er” for account; each however, it is not In March of forensic examiner clear if Yahoo! produced Image Upload (“Bradeen”) Scott Bradeen examined addition, Data. produced disks Cameron’s computers five and external containing images of child pornography hard drives. For each computer, Bradeen found in the question. accounts in determined the IP addresses from which computer had accessed the ICAC also Internet. served search warrants on Bradeen found Google evidence that for someone had information regarding the Goo- accessed gle seventeen different Hello ac- accounts accessed from Camer- counts, including computers. those on’s that were In response, the sub- Google pro- ject of vided Google NCMEC originally Hello Connection Logs ICAC, sent to computers specified various user accounts. Cameron’s home. In addition, Bradeen E. Indictment and Pre-Trial Proceed-
found child pornography images and tran- ings scripts indicating that someone using Cameron’s computers had signed Goo- into On February a federal grand
gle Hello using one or more usernames to jury indicted Cameron on sixteen counts of uploaded,
had been a representation ports. fact made CyberTipline Re-
631 because requirement specificity The Circuit’s crimes. pornography-related child tracked indictment of the count knowingly of each counts ten included counts ele forth the and set statutory language in violation pornography child transporting (citing at 181 2252A(a)(l) Id. and the offense. of §§ ments U.S.C. 18 of 1161, 15 F.3d knowingly Sepúlveda, re- v. of States 2256(8)(A); counts United four v. Seri (1st Cir.1993); States of 18 United in violation pornography child ceiving Cir.1987)). (1st 2256(8)(A); and 2252A(a)(2) no, F.2d and §§ U.S.C. child Maine venue in that knowingly possessing argued also of counts Cameron two he of 18 U.S.C. because three counts in violation for improper pornography was 2256(8)(A). of Each of the 2252A(a)(5)(B) dates on the in Maine §§ not was which on date The specific recited a at 182-183. Id. the counts offenses. alleged received, transported, allegedly because proper that was Cameron venue court found theOf pornography. child por possessed the child alleged or that indictment pornogra- child transporting of counts counts those ten images on nography child uploading alleged seven some phy, at into Maine had moved based were Photo ac- to Yahoo! pornography U.S.C. also 18 See Id. 183. point. child sending of counts; alleged two 3237(a) (venue district proper § Hello; one Google via pornography continued, started, the offense where pornog- child uploading alleged both completed). sending of Photos to Yahoo! raphy 2, 2010, moved Second, Cameron July on Of Hello. Google via pornography child from resulting all evidence suppress to pornog- child receiving four counts pornography for child searches Yahool’s had Cameron that alleged three raphy, be- occurred accounts that Yahoo! Photo Google via pornography received child warrants search received Yahoo! fore had that Cameron Hello, alleged and one II, F.Supp.2d Cameron ICAC. See via Yahoo! child received act- contended 419. Cameron transportation All of account. email when agent of as an ed Photo to alleging uploads counts accounts password-protected searched Cameron usernames the Yahoo! specified reporting before al- further The indictment allegedly used. Therefore, argued, Cameron NCMEC. oc- charged of the crimes that all leged Amend- Fourth his violated searches Maine. in the District curred con- Furthermore, Cameron rights. ment prior motions three filed Cameron illegal allegedly these that because tended appeal. this are relevant trial CP of YahooPs the basis searches moved to Cameron First, May on NCMEC, because See the indictment. counts all dismiss CyberTipline resulting NCMEC’s 179. Camer- I, F.Supp.2d at investi- government’s started to ICAC of which two arguments, a host of made should by ICAC seized gation, all first was The here. attention our demand as well. suppressed be be should indictment of the all counts rejected Cameron’s court The district Spe- pleading. for insufficient dismissed had that Yahoo! it found because argument that dismissal argued cifically, Cameron See id. agent. as a acted not did the indictment because warranted three- court’s this Relying on at 422-23. alleged that were the images specify Silva, 554 States from United test part Id. at pornography. be Cir.2009), (1st to be discussed 13, 18 hold- argument, rejected court district court held infra, the district further First satisfied indictment ing that *11 632 1354, (2004). 56, voluntarily 124
because Yahoo!
searched the
Yahoo! Reports to NCMEC’s ICAC, CyberTipline Reports to or the Ya- requested trial, a bench hoo! records that were attached to the began on August 2010. The govern- (and Yahoo! Reports then forwarded to voluntarily ment dismissed one of the two CyberTipline Reports) with the ICAC or possession trial, counts before trial. At produced response to search warrants. introduced evidence from witnesses, Based on this absence Cam- via testimony Yahoo! of Christian Lee argued eron that the introduction of this (“Lee”), employee. a Yahoo! Lee was a his rights would violate under the Legal Legal Compli- Assistant in Yahoo!’s Confrontation Clause of the Sixth Amend- Department ance who had no technical ment. Id. at 185.4 training, but who testified he was The court knowledgeable district denied Cameron’s mo about Yahoo!’s data reten- prejudice. tion without tion legal procedures. court noted Lee testified that the impli Confrontation Clause was about the information that kept Yahoo! only cated if prosecution sought its about users. See Part I.A. In particu- lar, introduce “testimonial” statements automatically without Lee stated that Yahoo! making declarant available for Manage- cross- recorded the data the Account (citing examination. Id. at 186 United ment Tool Login and the Tracker in the v. Figueroa-Cartagena, States regular course its business order to (1st Cir.2010)). However, “provide Craw reliable accurate data about Washington, Supreme Court its customer accounts.” Lee also testified ford suggested that, part “business records” ordinary prac- of its business tice, not considered “testimonial.” automatically receipt 541 U.S. stored representa- argument 4. The made a similar records was identical to his for the records, records, respect Google tion with to the the district court focused its challenge. Cameron raised similar Because discussion on the Yahoo! records. id. at See argument regarding Google Cameron’s 185 n. *12 him, NCMEC, According to suspect as information. Report it sent to of each CP the query identifying ap- is aimed at attachments, Im- including the as the well agency ju- with law enforcement propriate Data. Upload age investigate suspected the child risdiction to objection, Moreover, Cameron’s despite Although NCMEC pornography activity. the Account introduced government the the information it receives not alter does data, Login Tool Tracker Management the any way CyberTipline via the —other Re- data, of Yahoo’s CP receipts the unique “report ID” and an than record government The also NCMEC. ports to date,” noted that some- “entry —Shehan compact containing discs the introduced employees annotate times NCMEC would found in various ac- Reports with their own CyberTipline the emails, data, including other counts and information analysis regarding the con- response to the search war- produced tained therein.6 However, appear from rants. it does not case, the each time a NCMEC instant government that the introduced the record processing the informa- employee finished (or gov- Data that the Upload the Image Report, in a contained Yahoo! CP he tion data).5 had this ernment even CyberTipline Report create a or she would Google the The introduced appropriate it to law and forward the en- Logs through the testi- Hello Connection the agency, forcement here ICAC Unit mony Google employee Bogart Colin belonging the Maine State Police. As Bogart employee was an (“Bogart”). earlier, briefly CyberTip- the described Compliance Department Google’s Legal Reports line received ICAC contained Lee, and, training. had no technical like sections, among “Reporting them a several he the Goo- Bogart testified that retrieved section which re- Person Information” Logs by using an gle Hello Connection information, flected YahooFs contact him Google program that allowed internal section, “Suspect as a Information” well Logs to enter a username retrieve name, provided the user e-mail and Bogart testified that for that username. IP account associated with Address login information au- Google recorded this images. According to the that it on this infor- tomatically and relied themselves, IP that of the Address was regular mation its business activities. computer originated most recent The introduced exactly image upload. file It unclear through CyberTipline Reports NCMEC extracted this IP Address or how NCMEC (“Shehan”), testimony John Shehan date and time how determined the image She- which also upload, the executive director NCMEC. last information logical only is received report appeared reports. han testified that once on staff can from the record is through CyberTipline, NCMEC’s conclusion we draw analyzed suspected images and conducts that someone NCMEC reviews the Upload Data attached to the Yahoo! provided Image regarding an online search only piece Image Up- of evidence that ment. The other 5. The information contained Data, was the partially this information date and time contained load which reflected the Reports. CyberTipline NCMEC image uploaded each internet, govern- to the onto the central case-in-chief, analyses only as it was the evi- reflects that these ment's 6. The record out, prove redacted or deleted apparently relied on to blocked dence it could have gov- spe- CyberTipline uploaded those evidence at trial. ernment introduced into alleged in the indict- cific dates times example, CP and selected the IP address been committed. For through a *13 image Warner, from which the most recent had witness from Time Cameron’s ISP, uploaded, along the date and been with the government introduced records time of upload, the and included this infor- showing that the Time Warner account for in CyberTipline Report. mation the As we assigned Cameron’s residence had been on, particular will see later of im- certain IP addresses on certain dates. To port to that ad- argument Cameron’s the actually show child had of rights mission these violated his uploaded been on the in alleged dates the the indictment, under Confrontation Clause. and to show that it had been uploaded from the IP address Camer- CyberTipline Reports, Armed with these dates, on government on had those the eventually ICAC detectives were able to CyberTipline relied on the Reports; against obtain several search warrants appear does not from the record the govern- Cameron’s home and office. The government the Image Upload introduced regarding ment introduced evidence what (or Data into evidence even that it had this through ICAC found these searches via place). information in gov- the first testimony the of and Northrup. Bradeen ernment also introduced extensive evi- Bradeen testified about the child pornog- dence to living show no one else he raphy found on Cameron’s computers (Camer- Cameron’s household at the time about showing the evidence he found lived on with his wife and two chil- minor Google that various Yahoo! and Hello ac- dren) could have committed the offenses in counts had been accessed from com- those the indictment. puters. Bradeen also testified about the IP addresses from which com- Cameron’s To show images that the alleged be puters had accessed the Internet. Some child in fact depict did mi- of these IP addresses nors, matched the IP ad- relied on the testi- dresses included Re- CyberTipline mony (“Ricci”), of Dr. Lawrence Ricci ports that NCMEC had created for the physician and child expert. abuse Ricci different example, Yahoo! accounts. For analyzed images by determining into there was evidence that all four computers which “Tanner Stage” persons depict- seized Cameron’s home had accessed images ed fell. There are five “Tan- the Internet at some IP point through of Stages” “secondary ner develop- sexual 76.179.26.185, address IP ment,” was the I, being Stage the first at which address listed CyberTipline Reports on there is no such development. evidence of “lilhotteeOOOOO” and “harddudeOOOO.” analyzed Ricci the images recovered from Bradeen also testified that Cameron’s HP “very Cameron’s computers conservative- desktop had accessed through the Internet ly” only and identified as minors those IP 24.198.90.108, address Google which the persons whom he considered to be at Hello evidence an IP showed was I, address Stage even though generally children Google from which a logged Hello user had reach II Stage of ages between ten in to trade pornography. child and fourteen. Additionally, introduced Sentencing G. Conviction and that, showing on the specific transportation
dates receipt trial, Following the bench the district crimes charged indictment, Camer- court found guilty eight Cameron counts computers on’s had assigned been the IP transporting pornography, four addresses from which those crimes had of receiving counts pornography, least were involved. pornography. that at possessing child one count of arguments in turn. guilty We address Cameron’s found The court Cameron re transportation counts—one two of Sufficiency of the Indictment A. photos Yahoo! uploading lated sending relating Photo one argues that the indict Google Hello—because photos over it fails to iden ment is insufficient because conclusively find that court could not tify specific images that each offense *14 those images connected to persons Criminal of was on. Federal Rule based mo filed a were minors. Cameron counts 7(c)(1) states that an indictment Procedure trial, his tion for new in which he renewed concise, plain, a writ “must be definite arguments, the Clause but Confrontation the facts ten statement of essential consti rejected See court that motion. district tuting charged.” the offense Fed. (Cameron IV), v. Cameron United States 7(c)(1). in grading R.Crim.P. “When an (D.Me. 159-60, 762 F.Supp.2d sufficiency, dictment’s we look to see the sketches out the 2011). whether document of of elements the crime the nature to 192 The court sentenced Cameron that charge pre the so the defendant can years in ten of prison, months followed pare jeopardy a double plead defense The sentence was supervised release. prosecution in the any future for same in on court’s calculation part based Guerrier, offense.” United States involved “at least that Cameron’s offenses (1st Cir.2011). sufficiency of images than 600” of but fewer is a of law which question indictment triggered sentence pornography, (describing ques novo. Id. we review de the United States Sen- enhancement under sufficiency issue” to “legal tion of (“Guidelines”). See tencing Guidelines applies). which de novo review (2012). 2G2.2(b)(7)(C) § U.S.S.G. appeals now his conviction and
Cameron that the indictment We conclude sentence. As the district court cor was sufficient. noted, of indictment rectly each count
II. Discussion following information: a de included many that again scription the offense tracks appeal, Cameron raises On statute, the date language in his the relevant challenges pre-trial of the he made offense, First, type pornogra of the argues motions. he that the district (digital and the dismissing phy images), all involved court erred in counts transport Sec- means which Cameron either specificity. indictment for lack of (for by uploading speci ond, example, of Maine ed argues he that District album), received, Photos or for of the fied Yahoo! proper not the venue two was Third, in ques the child argues possessed he counts conviction. I, F.Supp.2d failing tion. See Cameron court erred district in argument Ya- from 180-81. Cameron’s all evidence derived suppress is because it failed password- search of dictment insufficient allegedly illegal hoo!’s Fourth, that each of identify specific he ar- protected Yahoo! accounts. unavailing. on As the from was based gues admission of evidence fense noted, Yahoo!, correctly neither violated his district court Google, and NCMEC under which Cameron rights. Finally, he statutes Confrontation Clause 7(c)(1) requires nor Rule itself charged erroneous that his sentence was argues Thus, See id. finding specificity. court erred in such because the district agree foreign with district court that the in- or shipped transported commerce in this Fed. dictment case satisfies or com- affecting foreign interstate 7(c)(l)’s requirements. means, R.Crim.P. by any by comput- including merce er”). addition, the district court found B. Venue trial the evidence at that the child argues that venue in Cameron Maine pornography images sent Cameron and re- Thir- improper Counts Twelve and ceived in New York while were stored teen of the indictment because he was Laptop, Cameron’s Dell which he later York on the dates alleged. New Counts Thus, brought back to Maine. because alleged Twelve and Thirteen that on Au- objects of commerce Cameron’s moved 11, 2007, gust transported Cameron Maine, into District of venue there was respectively, pornography, received child proper. using Google argues Hello. finding We further note that venue *15 he his computer physically since and purpose Maine is consistent with the York, in only prop- located New venue was protection, Constitution’s venue which is to er in New York. that a criminal “ensure[ ] defendant cannot right in ap “The to be tried distant, remote, unfriendly be in a tried or propriate venue is one the constitutional solely forum prosecutor’s whim.”
protections provided to defendants Salinas, 161, 164 United States v. 373 F.3d Sixth Amendment.” United States v. (1st Cir.2004). Since in Cameron lives (1st Scott, Cir.2001). 270 F.3d As Maine, the District of Maine cannot be such, showing proper burden of ven “[t]he him, “distant” or “remote” for and there is government, ue is on the which must do so no evidence that the District was an Court by a preponderance of the evidence.” Id. “unfriendly” forum. However, “[w]e review the evidence on light venue in the most favorable to the Suppress C. Motion to government.” legal Id. at 35. We review conclusions de novo. Id. at 34. argues Cameron that the district court 3237(a) denying erred in his motion to (2012), suppress §
Under 18 U.S.C. a He posits evidence. that Yahool’s involving crime interstate can search commerce for child in any from, password-protect- be “prosecuted district commerce, ed accounts violated the Fourth through, or into which such Amend- matter, mail ment because Yahoo! imported object agent or or acted as person government. moves.” con- Transporting receiving child Cameron further that, pornography via Internet services such as tends because the Yahoo! CP Reports Google Hello are both to involving crimes NCMEC were the result of Yahooi’s search, interstate commerce. See id. Cyber- because NCMEC sent 2252A(a)(l) § it (making illegal Tipline to “trans receiving to ICAC after porte “using reports, ]” Yahoo!’s all subsequent searches facility means or or foreign interstate executed ICAC at or Cameron’s home commerce or in or affecting interstate or via executed search warrants served means, foreign by any including Google commerce Yahoo! derived from Yahool’s 2252A(a)(2)(A) by computer”); Thus, § original illegal id. searches. illegal it (making “any argues, to receive all evidence obtained as result of mailed, pornography that during has been or us searches conducted ICAC’s investi- ing any facility or means of interstate or gation suppressed. should have been only impli A private search reviewing denial of a mo
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Silva,
va,
omitted). The Fourth Amendment does factor, no As there is to second Silva seizure, a an apply not “to search or even the Government exercised evidence one, private by a unreasonable effected any control over or over the search. Yahoo! acting agent above, not as an individual con- employees As discussed Yahoo! or participation or with the pursuant Government the search to Yahool’s ducted any governmental Furthermore, knowledge policy. internal there own official.” Jacobsen, 466 U.S. com- States v. is no that the Government United (1984) any way Yahoo! in to maintain such pelled 104 S.Ct. 80 L.Ed.2d added) (internal quotation policy. points Cameron to the fact (emphasis omitted). duty law to Yahoo had under federal marks and citation to in that court report pornography properly child NCMEC the district denied to suppress Cameron’s motion evidence. of 2007. See August U.S.C. 13032(b)(1) 2008). However, § (repealed D. Confrontation Clause impose any obligation statute did not next argues that the dis pornography, merely for child search trict court’s admission of evidence obtained obligation report Yahoo!, Google, violat and NCMEC which Yahoo! became aware. rights. ed his Confrontation Clause Al factor, Finally, Silva it as to the third though Cameron’s brief does not make combating certainly the case that specific clear which records he believes is a interest. admitted, not should have been does he However, mean that this does not Yahoo! specify challenging he is not the ad voluntarily cannot choose have same mission of child pornography images those above, interest. As discussed there is no provided response that Yahoo to search instigated evidence that presume warrants. We thus that Camer search, search, participated challenge on’s the following categories is to coerced Yahoo! conduct the search. (1) of evidence: the Yahoo! Account Man Thus, if implement poli- Yahoo! chose to agement Login Tool and Tracker data— cy searching for child it pornography, data attached to the CP presumably so for its did own interests. produced and was also in response to what record does reflect YahooPs (2) warrants; search receipts electronic been, might interests have but it is Camer- Yahoo’s CP to NCMEC —these on’s burden show that did what receipts produced by re interest, to further government’s did (3) sponse warrants; to search NCMEC’s he point carry can to no evidence to (4) ICAC; CyberTipline Reports to this burden. Google Logs.7 Hello Connection *17 factors, Having Silva applied the We review de novo a district acting conclude that Yahoo! not as an decision court’s that the admission vari of therefore, agent government; of the its ous exhibits did not violate Confronta searches of Cameron’s accounts did not tion Clause. See United v. States Mitch violate the Fourth Amendment. Because ell-Hunter, (1st Cir.2011). 45, 663 F.3d 49 violation, there was no Fourth Amendment Principles Confrontation Clause
there was no reason suppress any to evi- may dence that have derived from YahooPs “The Sixth Amendment’s Con reason, initial searches. For this we hold frontation Clause upon confers the accused him”) (internal challenge against 7. Cameron quotation makes no coherent to marks omitted). produced of admission the emails in re- citation Cameron ex has not sponse plained the search warrants served on Ya- to this court how of his Confron emails; appears lump arguments hoo!. Cameron in these with tation Clause relate However, reason, the other Yahoo! records. any challenge for this we deem to the recognized, may district court Rodríguez Municipality emails be emails waived. See v. Juan, 168, legally category (1st Cir.2011) ain distinct from the other San 659 175 of records, ("[W]e they because could arguments confusing be viewed as consider waived directly. ly statements attributable to lacking Cameron constructed and in coherence ... III, (not- mind-readers, F.Supp.2d See Judges parties 733 at 185 are not so must ing government’s argument spell clearly, highlighting that "statements their out issues attributable to defendant analyzing on-point in the Yahoo! relevant facts and authori (internal hearsay ty.”) records and emails are not quotation because a marks and citations omitted). party's directly own statement is admissible
639
reasonably
objective
to believe
right
witness
...
prosecutions
in all criminal
would be
for
that the statement
available
witnesses
with the
...
to be confronted
Crawford,
later
U.S. at
use at a
trial.”
541
v. Phoeun
against him.” United States
(internal
Cir.2012)
52,
quotation
were
state labo-
because the cer
ratory.
trial court allowed
Id. The
tificates at issue Meléndez-Díaz had
certificates,
though
even
forensic ana-
specifically
been
for
at
“prepared
peti
use
lysts who tested the substance did not
trial,”
tioner’s
court held that
testify.
309,
at
129 S.Ct.
Id.
2527. The
they
or not
qualified]
“[w]hether
busi
Supreme Court ruled that the
admission
records,” they
ness
un
inadmissible
these certificates violated the Confronta-
less their authors could be cross-examined.
they
tion Clause
fell
into the
because
Id.;
Bullcoming, 131
at
S.Ct.
2720
cf.
“
”
testimonial
‘core class of
statements’
(“
kept
regular*
‘[D]oeuments
course
Meléndez-Díaz,
identified
Crawford.
ordinarily
may
business
be admitted at
310, 129
(quoting
557 U.S. at
S.Ct. 2527
despite
hearsay status,’
trial
their
except
1354).
51,
at
541 U.S.
S.Ct.
Crawford,
‘if
regularly
conducted
activi
business
found
the certificates were
The Court
ty
production
is the
of evidence for use at
affidavits,
effectively
they
and that
had
circumstance,
In
trial.’
hearsay
“
clearly been ‘made under circumstances
rules bar admission of even business rec
objective
which would
lead
witness rea-
ords.”)
(inter
(Sotomayor, J., concurring)
sonably to believe that
the statement
omitted)
nal citation
(quoting Meléndez-
”
would be available for
at a
use
later trial.’
Díaz,
321,
2527).
641
mind,
statement was
pro- whether
the out-of-court
in
we
principles
these
With
Earle,
testimonial,” United States v.
the records
whether
to determine
ceed
(1st
Cir.2007),
dispense
we
na- F.3d
in
are testimonial
challenges
because,
assuming
the
issue
with
first
even
ture.
question
the
arguendo that
documents
Management
2.
Account
Yahoo!
statements,
hearsay
the same are
contain
Tracker,
Login
Tool,
and
Yahoo!
way
As
in no
testimonial.
the
Logs
Google Hello Connection
squarely
documents
conform
argues, these
by the Feder-
requirements
to the
outlined
the admission
It is clear that
business
al Rules of Evidence for
records:
Tool
Management
of the Yahoo! Account
(1) they
the
of
were made at or near
time
data,
data,
and
Login
Tracker
the
event; (2)
of
kept
regular
in the
course
the
Logs did
Google Hello Connection
the
(3)
business;
regular
and
created
Lee, the
the Confrontation Clause.
violate
course of business.
See Fed.R.Evid.
witness,
all
the
that
of
testified
803(6).9 Thus,
agree
govern-
with the
Tool and
Management
in the Account
data
Management
the Account
Tools
ment that
that Yahoo!
Tracker was data
Login
the
Login
and the
tracker were business rec-
to further
automatically
order
collected
Yahoo!,
Google
of
and the
Hello Con-
ords
Google
Bogart,
purposes.
its business
Logs
nection
were business records of
in a similar fashion re
witness, testified
Google.10
Google
Hello Connection
garding
analysis
Moreover,
Although
gen
it is
that none of these
Logs.
clear
“Crawford
type
consider two
of “testimonial” busi-
erally requires a court
records are
(1)
that might
whether the out-of- ness records
cause Confronta-
threshold issues:
(2)
hearsay,
tion Clause concerns under Meléndez-
and
court statement was
803(6)
pre-
provides
respectively,
and were not the ones who
record of
"[a]
9. Rule
act,
condition,
event,
However,
diagnosis”
opinion,
dealing
pared
or
when
the records.
despite
hearsay
if:
its
status
admissible
computerized records under Rule
with
(A)
803(6),
qualified
or
required
record was made at
near
"it is not
transmitted
time
from information
programmer
computer
... or
witness be
—or
knowledge;
with
actually prepared
person
she
who
be
—someone
(B)
kept
of a
the record was
course
Moore,
v.
923 F.2d
the record.” United States
business,
activity
regularly
of
conducted
(1st Cir.1991) (internal quotation
calling,
organization, occupation,
wheth-
omitted).
simply
rule
and citation
marks
profit;
er or not
requires
be "one who can
witness
(C)
regular
making
was a
the record
concerning
explain
be
and
cross-examined
activity;
practice of that
in which the records are made
the manner
(D)
by the
are shown
all these conditions
kept,"
Wallace Motor Sales American
quali-
testimony
another
custodian or
(1st
Corp., 780 F.2d
Motors Sales
...; and
fied witness
Cir.1985),
Bogart
Lee
satisfied
(E)
or the
source
information
neither
requirement.
As for the trustworthiness
preparation in-
or circumstances of
method
records,
ordinary
"the
we have held that
lack
dicate a
of trustworthiness.
[by
described
business circumstances
803(6)
requires that the records
Rule
also
qualified
suggest
witness]
trustworthiness
through
testimony
be introduced
absolutely nothing in the record
least where
witness,”
qualified
"custodian or other
Moore,
any way implies
lack thereof."
nor
of information
that neither
"source
*20
omitted).
(internal
at
citation
Such
F.2d
preparation”
or
of
the method
circumstances
here,
in
there
no evidence
is the case
since
of trustworthiness.”
can "indicate a lack
Google’s
or
data re-
the record that Yahool’s
Bogart
protests
Lee
were
that
way.
any
cording systems
in
were flawed
knowledge
engineers,
of the tech-
not
had no
Google’s systems,
of
or
nical details Yahool’s
room,
kept
that Yahoo!
containing
Díaz. Lee testified
information on screen
Management
Login
Account
Tool and
names
po-
that Yahoo! has associated with
Tracker data in
to
tential child pornography.
order
serve business
We also find
totally
functions that were
unrelated to that the second
met
prong is
as the CP
or
purpose: Reports
by
trial
law enforcement
person,
were made
as Lee
namely,
provide
reliable
they
by
data about its
himself testified that
were made
Bogart
customer accounts.
simi-
provided
person
knowledge
with
of their contents.
Lee,
testimony regarding
lar
Google’s
According
need for
at
someone
Yahoo!’s
Thus,
Google
Logs.
Legal
Hello
Department
Connection
reviews an archive of
test,” Williams,
“objective
applying an
132 the images
suspect’s
featured in the
ac-
count,
we find
the “primary
removes those that
not appear
do
purpose”
collecting
of
this data was not to
contain child pornography, and includes
prov[e] past
poten-
“establish[
events
the rest
in
Report
]
the CP
addressed
tially relevant
to later criminal prosecu-
receipts
Although
NCMEC.
of the CP
Bullcoming,
Reports
question
tion.”
We that the can same person, who intended those statements to receipts be said for the of the Yahoo! CP true, be taken as and subsequently acted testified, Reports. As Lee Yahoo! created on, by explain infra, NCMEC. As we will Reports CP ordinary course its of despite this is the case the fact that some business. Yahoo! kept receipts also of of information contained in the CP Reports, those cop- which were essentially Reports generated automatically by was Reports, ies ordinary course Yahoo!’s different retrieval tools. Thus, of its business. in analyzing wheth- receipts er the Reports of the CP are Lastly, we conclude that the re testimonial, we consider whether the CP ceipts Reports the CP were introduced receipts themselves —of which the prove trial the truth atof least some simply computer-generated are copies— of the matters asserted them. The (1) statements, are hearsay out-of-court government sought to introduce this evi (2) and whether these statements are testi- dence to link establish a between the “Sus Earle, monial. at 542. pect IP Address” contained the CP Re hearsay,
In order to ports constitute prosecution and Cameron. The (1) the CP Reports must be: seemingly operating statements under the impression (2) (3) court, made out of a person, and IP address one from prove offered into evidence to truth which the most image por recent 801(b) the matter nography asserted. Fed.R.Evid. uploaded, had been though, even (c). As to the first prong, previously we have no explained, as this association is finding trouble apparent CP are readily from the documents statements, they out-of-court are writ themselves. Consequently, only can assertions, ten made outside infer government’s court- that it was the intent to *21 receipts of the Yahoo! to the conclude the to link Cameron this evidence use por- Reports identifying from which child CP were introduced as addresses specific IP into uploaded evidence, designed the to unveil Cameron images were as nography accounts, just support not to for person responsible uploading the child that said IP addresses proposition the Yahoo! using the screen regis- from which Cameron the ones were in some of the counts of names featured Yahoo!. To establish Hence, the accounts tered receipts the these indictment. latter, could have sim- the the truth of the prove were introduced to the Manage- the Yahoo! Account relied on ply as matter asserted and such constitute Tool, of which we have the admission ment hearsay. implicate not the Confronta-
just held did tion Clause. inquiry step The next our calls receipts the upon us to determine whether along apparently court went
The district Reports are testimonial. of the CP We of the CP re- characterization with this Reports, assume that CP ex to admit their re- it decided ports when as receipts, tension the would count busi so, doing evidence. ceipts into purposes ness records for the Federal logical three-step through court went 803(6). However, Rule of Evidence unlike ultimately linking Cam- aimed sequence Tool, Management the Yahoo! Account to IP addresses and the Yahoo! eron Login Google Tracker Hello images, data upload the names used to screen Logs, strong there proposed. Connection just as the had First, prepared were receipts Reports used the the CP with district court purpose establishing Reports “primary to link the Yahoo! of the CP relevant proving past potentially events to the IP addresses from screen names prosecution.” Bullcoming, a later criminal suspect images uploaded. were (internal quotation at 2714 n. 6 Second, used the 131 S.Ct. the district court omitted). also find Reports to make marks and citation We CyberTipline NCMEC purpose similar in Reports IP that the are between these address- the connection por- of out-of-court statements that uploading types child and the crime of es Supreme the im- Court has described testi images, by examining nography monial in recent Confrontation Clause making ages attached these Davis, 828-29, 547 U.S. at they cases. See preliminary finding portrayed (statements to law enforcement as defined in federal S.Ct. situation); Meléndez- non-emergency that the in- Lastly, law.11 court found (doc Díaz, 321, 129 IP linked to 557 U.S. at criminating addresses were ordinary uments created in the course of based on the evidence obtained Cameron purpose). “PayPal” litigation but “eBay”, such as business also from sources Thus, may website, although have “Military the CP and the Watch Forum” ordinary been created in the course of that Cameron had used which evinced business, they also testimo in to Yahool’s log IP his those same addresses nial; receipts Reports, there with those entities dur- personal accounts fore, been admitted uploads that the should have with ing periods the same time opportunity place. soundly giving From this we can out took CyberTip- receipts pornography, unlike the NCMEC It that the should be noted into evidence Reports, Yahoo! CP introduced line which did. images of contain actual did not *22 464 employees clearly past events,”
cross-examine the Yahoo! who “established in that prepared Reports. CP each one reflected the “event” of child pornography being placed into a Yahoo! by objectively viewing We start the evi- at point past. user account some “primary purpose” to dence determine the These clearly “events” were “relevant to Reports. Firstly, of note that the prosecution”: later criminal uploading Reports “Suspect refer to CP a Screen possessing on the it Name,” “Suspect Address,” a Email and a crimes, Internet are and evidence to the “Suspect A “suspect” IP Address.” is address, IP and screen name of the sus- suspected; who esp. “one is one suspected clearly pect, is prosecuting relevant a being crime or of infected.” Web- those crimes. We also find that the CP ster’s Third New International Dictionary Reports were “made under circumstances (2002). 2303 There no from testimony objective which lead an would rea- witness Lee, evidence, any nor other that Yahoo! sonably to believe that the statement “suspects” treated its customers as would be available for use at a trial.” later ordinary Indeed, course its business. Crawford, 541 124 U.S. at 1354 S.Ct. “suspect” appear word does anywhere (internal quotation marks and citation in the Account Management Login Tool or omitted). Lee it Ya- testified Further, Tracker data. Lee testified practice hoo!’s standard to send Re- CP Report in order for a CP to initially have ports to keep receipts NCMEC and created, been someone in the De- Legal thus, Reports; those generated whoever partment had have an determined that the CP Reports presumably this case appeared account contained what to be knew that Reports likely would most pornography images. an spark investigation, and that as result a Secondly, once Yahoo! created a CP Re- investigation, of such it port, merely keep did not it in its own (in might request the CP Reports the form files; rather, it report sent on to of the receipts) from Yahoo! for use as (and kept receipt). NCMEC a Although evidence. officially NCMEC is not en- tity, it a grant receives govern- Our by compar conclusion bolstered ment, and one of the uses Reports ison the CP at issue here with puts grant money oper- NCMEC is to those statements the Supreme Court has the CyberTipline reports ate and forward found to be testimonial or non-testimonial of child pornography lawto enforcement. in recent Confrontation Clause cases. For 5773(b)(l)(P). 42 § See U.S.C. example, the CP Reports here are similar
Given that Yahoo! created CP many ways to those statements that the referring “Suspect[s]” and sent them to Supreme Court found be testimonial in organization that is given government Davis. Davis concerned two consolidated grant to reports forward such to law cases. 547 at U.S. S.Ct. 2266. enforcement, case, is clear that under the first girlfriend the former of Ad “objective Williams, required by (“Davis”) test” 132 rian Davis report called 911 to the primary purpose S.Ct. her, of the that Davis was assaulting and narrat CP towas or prov[e] “establish[ ] ed Davis’s attack operator to the as it past potentially events 817-18, relevant to later occurred. Id.
criminal prosecution.”
trial,
Bullcoming, 131
girlfriend
At Davis’s
did not testi
(internal
S.Ct. at 2714 n.
quotation
fy, but
recording
the court admitted the
omitted).
marks and citation
call,
and Davis was convicted of
*23
certainly
accounts was
not an
no-contact order.
in Cameron’s
a domestic
violation of
“emergency” comparable to what Davis’s
818-19,
2266. In the sec
at
126 S.Ct.
Id.
operator:
to
911
girlfriend described
case,
to a domes
police responded
ond
ongoing physical
Michigan
assault.
home
Hershel
at the
of
tic disturbance
Cf.
— U.S. -,
1143,
Bryant,
131 S.Ct.
819,
(“Hammon”)-
Id. at
126
Hammon
(2011)
1166-67,
(holding
L.Ed.2d
179
93
separately ques
police
S.Ct. 2266.
by gunshot victim to police
that statements
wife,
latter of
and his
tioned Hammon
not testimoni
identifying the shooter were
stating that
out an affidavit
whom swore
police had reason to believe that
al when
820, 126
Id.
had
her.
at
Hammon
attacked
still be armed and in the
might
the shooter
testify
did
Hammon’s wife
not
S.Ct. 2266.
area). Rather,
Reports
the CP
were
her
trial,
court introduced
at his
but the
lead
“an
clearly
investiga
intended to
affidavit,
guilty.
Hammon was found
possibly
past
into
criminal
conduct.”
tion
820-21, 126
2266.
at
S.Ct.
Id.
Davis,
829,
at
547 U.S.
made
new
rec
testifying
refers
ords
crossed
line into
report
those conclusions. Each
also
records;
regarding
meaning
of those
his
“Suspect”
to a
who
identified
circumstance,
in this
had
Name,”
Address,” “IP Ad-
“Email
“Screen
right to confront the author.
Melén
dress,” and
This means that
“URL.”
Cf.
dez-Díaz,
U.S.
analyzed
busi-
someone Yahoo!
YahooFs
(noting
traditionally,
a clerk was al
(1) a
ness records and concluded that
“to
to the
‘certify
lowed
correctness of an
(2) a
likely
crime had
been committed and
office,’
kept
record
his
but
[official]
had
likely
particular user
committed
furnish,
authority
‘no
as evidence for the
Thus, every
Report
crime.12
CP
lawsuit,
trial of a
interpretation
his
of what
conveyed
new
was a
statement
shows,
certify
the record contains or
toor
analysis
previously.
that had not existed
”) (quoting
to its substance or effect’
State
was,
effect,
The new statement
“some-
Wilson,
141 La.
So.
crime,
one has committed
here is the
(1917)). Indeed,
the distinction between
committed,
a crime was
business records and statements about
identify
here is how to
perpetrator.”
those records
recognized
*26
primary purpose
The
of this new state-
Ali,
Eighth Circuit in
a case on which the
enforcement-related,
ment was law
even if
Ali,
In
prosecution
relies.
the
primary purpose
the
the
to
data used
95,”
introduced “exhibit
which consisted of
support the statement was not.
con-
Our
(1)
bank,
parts:
HSBC,
two
from
records
a
strengthened
clusion here is
fact
by the
regarding
taxpayers’
three
refund antici
that
in preparing
Reports,
the CP
the
(2)
checks;
pation
and
a
letter
a
employees
images
removed the
manager at HSBC that explained the
they thought
depict
pornogra-
did not
child
meaning of the records. 616
751.
phy,
images
presumably
as said
would
not
The HSBC manager wrote that the letter
be
prosecution
relevant
the
was a
verify
“written statement
that
pornography crime.
three taxpayers]
[the
filed 2002 income tax
fact
The
that Yahoo!
each
attached to
returns with
Tax
Cedar
and ap
Services
Report
justified
CP
the records that
its
plied for
Anticipation
Refund
Checks.”
analysis
Tool,
Management
Account
The Eighth
Id.
Circuit held that while the
—the
Tracker,
Login
Image Upload
and
Data—
nontestimonial,
bank records were
“[t]he
does not mean that the
Report
CP
itself
equivalent
live,
letter was arguably
in-
a new
By creating
not
statement.
the
testimony
court
thus
not admissible as
Report,
CP
the
report
author
went
a business
Id. at
record.”
752.13
pictures
authorities,
doWe
not treat the
ported
themselves as
those transactions to the
12.
However,
business records of Yahoo!.
the bank's financial
transaction statements
picture
association between
simply
and an account
would not become testimonial
be-
Yahoo!;
clearly
aggregated
business record of
with-
cause
bank
them in order to
associations,
keeping
report.
support
proposi-
out
track of these
make its
Ya-
of this
tion,
figure
photos
hoo! could not
out
relied
on its
Government
on United States
(11th
Naranjo,
Cir.2011).
belonged
v.
servers
to which users.
ed with CyberTipline Reports man can be one step for sometimes lytical pur Clause leap for Confrontation giant also assails the admission of are To hold that CP poses. Reports, argu- CyberTipline the NCMEC as busi confrontation admissible without rights his ing further violations of under they state simply because records ness govern- the Confrontation Clause. based on data other conclusions obvious CyberTipline ment’s is that the response “return to would be to records business actually Reports are “statements” Supreme over-ruled decision Court’s] NCMEC, [the merely for- because NCMEC ], which held evi Roberts [Ohio appro- wards Yahooi’s CP *27 guarantees of ‘particularized with dence con- priate agency. law enforcement We notwith clude, however, was admissible argument trustworthiness’ is that standing Clause.” Me already the Confrontation we deter- unavailing, as have léndez-Díaz, 317, 129 Reports 557 U.S. at S.Ct. mined that the Yahoo! CP from Roberts, 56, 448 U.S. (quoting CyberTipline Reports 2527 Ohio v. which are de- the (1980)). By 65 597 the govern- 100 S.Ct. L.Ed.2d rived are testimonial. at be Crawford, logic, simply also U.S. ment’s NCMEC would See made (“Dispensing forwarding with confrontation testimonial statements to law There- testimony obviously is reliable is Yahoo! enforcement. because a,bin fore, problems Clause jury with trial because a the Confrontation dispensing gov- prepared by that simply on the records were not testimonial because did become prosecu- they agent. be relevant to a turned out to The Eleventh Circuit held that ernment however, Reports, have The no tion. CP they the were because sim- charts admissible government’s example. equivalent The underlying ply data that was summarized Reports analyses are documents that contain However, the Id. at 1213. non-testimonial. per- were on certain other records that based the was able to cross-examine defendant only activity was formed criminal detect- charts, after summary agent prepared who the ed. jury the court had instructed the district addition, Naranjo In limited relevance of “only as an aid ... and not refer to the charts clearly distinguish- it is to this case because (internal quotation Id. marks for the truth.” Naranjo, In the able on its facts. Eleventh Here, omitted). opportunity no Cameron had that bank records checks Circuit held Re- author of the CP cross-examine the into as non-testi- could be admitted evidence Moreover, Reports to ports. deem the CP we records. 1213- monial business “summary” other be than a mere of more However, Confrontation the defendant's data; rather, analysis they other are an of argument appeal on was aimed not Clause data. records, summary charts based these but on One, Three, Four, Two, Five, Reports admission of Counts find with the CP Elev- CyberTipline Indictment, taint the admission en and Fourteen Reports. exclusively charge with upload- Cameron digital ing images of child event, In we are that not convinced specific specific onto Yahoo! accounts on government’s con- supports record only The piece dates. evidence the CyberTipline Reports tention that government could have relied on to estab- exactly “contain the same information specific lish the dates which Cameron present in” the Yahoo! Reports. CP uploaded offending had images was the fact, we supports believe record CyberTipline Reports, which reflected the opposite reading, which is that NCMEC date time on which the most recent exactly does send always along not what it image of child had up- been receives Yahoo! to from law enforcement. loaded, as well IP as the address from analysis supports Our below the conclusion upload originated.14 which that had that these were new statements made NCMEC and testimo- constituted receipts of the CP hearsay nial statements which were admit- were enough alone sustain Camer- ted into violation of Cameron’s on’s convictions under above-refer- rights. Confrontation Clause they enced counts did because not contain specific upload, date of each nor did
First, the CyberTipline Reports they contain images the actual that were were into prove introduced evidence to earlier, uploaded. As mentioned list truth of the matters them. asserted IP Addresses from which each of the previous Our discussion outlining dis uploaded, along with the date trict reasoning admitting court’s and time of upload, each contained CP demonstrates Image Upload Data Yahoo! sent CyberTipline Reports were admitted as part NCMEC as of each part Report. CP of a at prov batch evidence aimed However, review, ing our had does not uploaded por nography appear this data was images onto several Yahoo! ac included with the *28 fact, Report receipts prosecution counts. In without CP CyberTipline the the intro- Reports trial, prosecution the not anywhere would have duced or else on the been prove able to Cameron’s guilt Therefore, to for that record matter. the example, charged For Count Eleven Cam- the July ed to “lilhotteeOOOOO”account on uploading eron with pornography child im- 2007. Nor is there other exhibit that ages July to the "lilhotteeOOOOO'' on account pornography that uploaded shows child was 26, 2007. The from Time Warner to this account from IP address and other showed sources that res- Cameron’s Report 76.179.26.185. The CP that Yahoo! assigned idence had been the IP address to sent NCMEC for "lilhotteeOOOOO”does not 76.179.26.185 on that date. To show that images the show times at upload- were pornography uploaded was to the "lil- ed or the IP they addresses from which were date, gov- hotteeOOOOO”account on that the (the uploaded report "Suspect a shows IP pointed CyberTipline Report ernment to a for 76.179.26.185, Address” of which is the IP Report "lilhotteeOOOOO.”This indicated that address Yahoo! "associated” with the ac- the image upload "most recent file or avail- count, explain but Lee did not how the ad- able” in up- the data sent from Yahoo! was "associated”). Image was Upload dress The 76.179.26.185, loaded from indi- further Report Data attached to the CP had this infor- "upload July cated that the date” was mation, Lee, according but to the Daylight at 9:37 AM Pacific Time. We appear not does to have introduced this data have found no other exhibit in the record that into evidence. pornography upload- indicates that child was so, un- doing employee In the NCMEC introduced— Reports were CyberTipline per- to the a similar exercise the one prove dertook evidence to and admitted —into therein, by employee the creat- formed Yahoo! who the assertions contained truth of they analyzed both Reports; ed the CP child pornography that importantly: most underlying Image information in the the uploaded particular onto a images were Data and then used that informa- Upload account, that the most recent separate, independent to create a tion uploaded from those one of by statement. The new statement made specific specific IP Address on date along can characterized these NCMEC be time. data, “based on the Yahoo! we have lines: reasoning govern- defeats the The above by that the IP Address used determined argument CyberTipline the ment’s the im- suspect upload most recent really are of not “statements” X, is age they simply because all do is NCMEC upload and time Y and Z.” date is by convey information sent NCMEC Having Cy determined that like to law enforcement. companies Reports were berTipline indeed new state testimony from relies on NCMEC, by question now is ments witness, Shehan, the to the effect NCMEC they testimonial. The an whether anything not add that NCMEC does be it is “yes,” swer must clear that the CyberTipline, via the reports receives purpose” CyberTipline of a Re “primary ID” number and “report aside from port prov[e] past is “establish!] However, this “entry report. date” for the potentially relevant crimi events to later explain Cyber- the fact does Bullcoming, nal S.Ct. at prosecution.” and time Reports reflect date Tipline (internal quotation n. 6 marks and im- of the most recent child omitted). Indeed, con citation Shehan receipts the Ya- upload, while the age during as much ceded cross-examination: not. As mentioned hoo! CP do Shehan, “Mr. Q: purpose the sole earlier, only explanation reasonable reports are Exhib embodied employee can surmise NCMEC through CyberTip its ... 10A 10M [the reports analyzed the who created these trial, Reports] prove line is to facts at Upload in the Image information contained correct?” Yahoo!, picked IP Ad- Data sent record, yes.” part A: “It’s be image from which the most recent dress addition, primary purpose is also informa- uploaded, and included this face of the them- reflected tion, along with date and time of that *29 selves, which state: “Law enforcement of- CyberTipline Report. We upload, please Report ficials be advised: this is Reports the note that Yahoo! CP did the a being provided solely purpose “Suspect whether the IP Address” specify investigation possible law enforcement into the IP from which the most was Address (emphasis original criminal behavior.” on image of had pornography recent child removed). was uploaded, representation a been above, CyberTipline Reports. Even without the we would have in fact made Therefore, represen- finding CyberTipline make no trouble order to this such, tation, they were employee pre- Reports who testimonial. As NCMEC Reports giv- had to not have admitted without pared CyberTipline could been Upload ing opportunity sent to cross-ex- analyzed Image have Data Cameron admitted amine their authors. Shehan by Yahoo!. 652 Seven, Nine, Six, Twelve, original analyst
that he was “not the
who counts
and Thir
provable beyond
CP
teen —was
processed” the Yahoo!
this
reasonable
Thus,
using
Google
doubt
Hello
Cyber-
the admission of the
Connection
case.
Logs,
properly
which were
Reports in
circumstances vio-
admitted.
Tipline
these
Likewise, Cameron’s Yahoo! email and the
lated the
Clause.
Confrontation
pornography
computer
child
found on his
Analysis
E. Harmless Error
beyond
showed
a reasonable
that he
doubt
received child
via email as
That certain evidence was ad
charged in
Ten. Finally,
Count
Cameron’s
mitted in violation of Cameron’s Confron
Fifteen,
guilt on
pornogra
Count
child
rights
necessarily
tation Clause
does not
count,
phy possession
proven using
was
mean that we must reverse Cameron’s
pornography images
found on his
Instead,
any
convictions on
counts.
we
computer.
argues
“spill
must determine whether or not the error
prejudice
over”
from the improperly ad
doubt;
beyond
harmless
reasonable
was
mitted records taints these convictions as
harmless,
if
error was
we will not
well, but
argument
is
Cam
Meises,
meritless.
reverse. See United States v.
645
trial,
eron’s trial
a bench
(1st Cir.2011) (“Constitu
was
are
we
24 n.
F.3d
confident that the district court
capa
errors,
as a
tional
such
Confrontation
recognizing
ble of
which evidence was rele
violation, require
Clause
reversal unless
vant for each count of conviction.
beyond
shown to be
harmless
reasonable
Cf.
added)
Zayas,
United States v.
876 F.2d
(emphasis
(citing
doubt.”
United
(1st Cir.1989) (in
bench
Cabrera-Rivera,
context of
States
583 F.3d
trial,
(1st Cir.2009))).
holding
“spillover
...
Cabrera-Rivera,
effect
minimal”).
explained that
harmlessness,
evaluating
[i]n
we consid-
However, for those counts that
factors,
er a number
including
wheth-
solely
alleged
based
on Cameron’s
er the challenged statements were cen- uploading
pornography images
of child
case;
tral to
prosecution’s
whether
One, Three,
Yahoo! accounts—counts
merely
the statements were
cumulative Four, Five, Eleven, and Fourteen —we
admitted)
(properly
evidence;
of other
conclude that the admission of the Yahoo!
strength
corroborating
or contra- CP Reports
the CyberTipline
evidence;
dicting
the extent
to which was not harmless. As we
explained,
have
permitted;
cross-examination was
and in
charged
those counts
strength
the overall
of the ease.
very specific
Cameron with
up
conduct:
Earle,
(citing
Rivera, F.3d at 36.15 III. Conclusion gov- if the might be different Our result reiterate, concluding, pause we to Before admitted us other point could ernment (and sake, clarity’s per- we have what for (1) showing that specifically evidence not) what have haps importantly, more we ac- to the uploaded had been holding today does not today. Our held (2) on in the indictment identified counts rec- that non-testimonial business mean (3) in the indictment specified the dates simply become testimonial somehow ords had IP that Cameron addresses the to use them government the seeks because govern- example, For dates. on those a criminal defendant. against as Image introduced might ment have However, are testimo- if records business Yahoo!; govern- Data from Upload given nial, must be then defendant acquired this could ment have presumably authors of opportunity confront it data, that Yahoo! stored Lee testified as government did records. those What However, clear it is not receipts. with the introduce, absent this case was seek parties’ transcript trial from the authors, of the out-of-court confrontation produced Yahoo! in fact whether briefs (1) before that: did not exist statements case, any government; and (2) discovered; activity was stated criminal attempt to did appears ones) (though obvious perhaps conclusions gov- it is the it at trial. Since introduce data; (3) underlying meaning about harmlessness, prove burden to ernment’s purpose express created for the were that find no indication and since we identifying activity criminal reporting admitted, actually evidence was alternate (4) activity; perpetrator for convictions reverse Cameron’s must en- government-funded to a reported Five, were Three, Four, Eleven One, Counts passing as a conduit tity serves and Fourteen.16 CyberTipline Re- admission challenge govern- that the Cameron does not 15. wife nor his showing his at its neither We ports ment's was not. take up- the ones who harmful, could have been children the CP were but word that images. loaded Cy- disagree of the with its characterization Reports, evident that these berTipline it is gov- argument, for the During oral counsel proving Cameron had central in admission admit that the seemed to ernment on the uploaded child Reports was harmful Yahoo! CP of the indictment, specific set out in the indictment. dates but stated counts of several *31 654 Const, This, VI;
information to law enforcement.
amend.
Bullcoming
see
v. New
Mexico,
-,
2705,
hold,
564 U.S.
government
131 S.Ct.
cannot do.17
2713,
(2011);
655 each and to confront opportunity en an (1) testimony or its in-court parte “ex is, material that equivalent supplies who every functional witness —that affidavits, custodial examina- as such that Mr. prove will use to tions, testimony that the defendant prior alleged offenses.” committed Cameron cross-examine, or similar unable trial, the defendant In motion for a new his declarants statements pretrial qualities” that the “testimonial insisted used expect to be reasonably would the Ya- particularly various evidence— (2) “extrajudicial state- proseeutorially,” by witness Lee— evidence introduced hoo! testimoni- in formalized contained ments was “obvious.” affidavits, deposi- materials, such al confessions,” testimony, or tions, court, prior trial Failing persuade (3) made un- that were “statements his constitutional brings now defendant lead an which would circumstances der notes, majority us. As the plaint before reasonably to believe objective witness out the testimoni- parse does Cameron available would be the statement pieces of the various al nature of each trial.” at a later for use originat- documentary evidence digital and Crawford, (quoting at 22 672 F.3d Lang, Yahoo!, NCMEC, Google. ing from 1354) 51-52, (ellipsis 124 S.Ct. U.S. 541 Instead, global position takes the he omitted). initially did not the Court While discloses the location “any report which as cir- formulation any particular endorse was seized must be testi- where evidence of testimonial the bounds cumscribing stroke, sweeping Camer- monial.” With 822, Davis, 547 U.S. at hearsay, see such attest argues because 2266, to have since ratified it seems S.Ct. images digital the location where the list, being illustrative. at least as the above found, they “clearly are themselves were Massachusetts, 557 Melendez-Diaz See statements” that are identical testimonial 2527, 305, 309-10, 129 S.Ct. U.S. drugs in that “I found the to a statement (2009); at 22. Lang, 672 F.3d L.Ed.2d gun “I found the the defendant’s car” or the Court has consid- years, in recent And the ve- garage.” To test the defendant’s statements, scope of “testimonial” ered about racity purported of these statements interrogation set- police particularly the re- that are embedded within location Davis, 126 S.Ct. 547 U.S. ting, see that he was appellant claims ports, reports, respect to scientific and with person(s) to cross-examine entitled 2705; Melen- Bullcoming, 131 S.Ct. see how, 2527; when dez-Diaz, found the records about see who U.S. Williams, were located. 132 S.Ct. also and where CP case, vigorously argued majority that the ad- I with the agree digital trial court that the various to the Ya- to the pertaining mission of evidence that had related materials images and Tool, the Ya- Management Account hoo! Yahoo!, NCMEC been derived data, Google and the Login hoo! Tracker evi- must be excluded from Google sources implicate logs does not Hello Connection government produced unless the dence not, I do how- Clause. the Confrontation found and witness who percipient trial ever, reports (presented the Yahoo! view and trans- contraband seized the electronic judge sitting receipts in the form In one government. to the mitted finder), extension as fact posited, “[t]he counsel pleading defense reports, as amount- CyberTipline NCMEC in the room revolves elephant figurative in the man- statements ing to testimonial giv- must be whether Mr. Cameron around *33 (also argued by ner the defendant and ular decided identified user name sometimes by majority.18 the referred to in the evidence as “screen name”) “login name” or and IP address begin, I emphasize
To
the Sixth
that Yahoo! associated with that user
Amendment is concerned with testimonial
name. The trial court also referred to the
being
statements that are
offered for the
various “ISP documents” admitted into ev-
truth
the matter
asserted.
See
idence in relation to
image
the
archives as
Williams,
2232-35; Crawford,
132 S.Ct. at
custody
“chain of
evidence.”
was clear that descriptive even the illicit connection. But a review of both Lee’s “original names” of some of image files testimony explaining process of data (not assigned by a employee) listed storage Yahoo!, by retrieval followed report’s in the table should not be relied themselves, as well as the reports leads to on to illegal assess the nature the actual the conclusion that the Yahoo! reports do digital Rather, images. not contain any testimonial statements. provided testimony expert of an child abuse who analyzed each image part, For his the defendant generally relation to the “Tanner stages” to establish speaks of all of the records that accompa- sexually graphic images in fact ny digital images as “affidavits that depicted children within a certain age attest to the location” of where the images span. found, were but analyze he does not each Instead, document
Moreover, type. he likens the appellant provides no rec- sum of reports support court, ord to show that this including the district case— reports the Yahoo! case, the trier of fact in the evidence at is- somehow —to relied on sue in reports the Yahoo! Melendez-Diaz and Bullcoming, ar- determine whether images guing or not the that the themselves con- records “were admitted as computer stituted child pornography. forensic The trial evidence obtained court quite persons clear that unknown documentary using unknown methods evidence was purpose presented by admitted for the substitute witnesses” in link providing a images between the violation of al- his Sixth right Amendment leged to be child pornography that were confrontation. comparison, however, The server, found on the Yahoo! partic- and the inapt. does, majority
18. For the same reasons as the
reports
hoo!
were admitted into evidence and
solely
I refer
times,
to the Yahoo!
when
report
I
singular
reference a
conducting
analysis
the constitutional
here.
I
simply
exposition.
for ease in
also note that
receipts
numerous
of the Ya-
photo
found in the Yahoo!
hearsay
the testimonial
heart of
user name and
tied to the identified
album
state
a certification
Melendez-Diaz
For
part,
IP address.
its
the associated
made
a state
an affidavit
ment akin to
*34
IP
majority seizes on the
addresses
attesting to the
laboratory analyst
forensic
reports
because in
identified
the Yahoo!
analyzed
forensically
sub
fact
IP
one instance a different
address was
cocaine;
had
the substance
stance
Management
in the Account
Tool
recorded
and deliv
enforcement
seized
law
been
majori-
user name. The
for the identified
analysis of
laboratory for
to the state
ered
that both the
ty surmises
at
129 S.Ct.
contents. 557 U.S.
its
took the IP address iden-
the district court
as
were offered
2527. The certificates
the one from
report
tified in a Yahoo!
be
truth of
prove
substantive evidence
image
por-
the most recent
of child
the nature of the sub
assertion that
into a Yahoo!
nography
uploaded
had been
cocaine, an assertion
actually
stance was
majority
From this the
con-
photo album.
analysis
by a
forensic
generated
scientific
used the Ya-
cludes that
produce
in to
evidence
engaged
specifically
reports
hoo!
to tie the defendant to the
Id. at
proceeding.
use at a criminal
which child
specific
por-
IP addresses from
310-11, 129
Even
nography images
uploaded.
are
Bullcoming
The circumstances
so,
ways
majority
I
with the
because
part
statement in that
The testimonial
similar.
any given
report
be-
the link
a
an ana-
consisted of certification
case
incriminating images and the
tween the
signed
a “formalized
docu-
lyst akin to
user name and IP address
accompanying
a
attesting to the fact that
blood
ment”
is not a testimonial statement.19
content of
contained an alcohol
sample
To the extent the connection between
milliliters”; the
grams per hundred
“0.21
name,
IP
the identified user
the associated
from the defendant
had been drawn
blood
address,
images archived
digital
and the
a
in connection with
hospital
at a local
photo
that user’s
album can be
charge
influence
driving under the
statement,
a declarant
that loca-
deemed
laboratory by law
delivered to the state
connection existed well before Yahoo!
tion
its
analysis
for forensic
enforcement
complaint
the customer
even received
2716-17. The
contents. 131 S.Ct.
the content of the
associated
about
evi-
offered as substantive
certificate was
“lilhottyohh”.
In-
with the screen name
the truth of the assertion
prove
dence to
deed,
testimony the thrust of Lee’s
alcohol content in the
to the level of
as
storage
digital images
of the
that the
by a
sample,
generated
an assertion
blood
account data on the Yahoo!
the associated
analysis
en-
specifically
forensic
scientific
part
an
of the Yahoo!
servers was
essential
produce
in to
substantive
gaged
The record indicates
photo album service.
at a criminal trial.
Id.
for use
computer systems and retrieval
2713, 2716-17.
locating images
any given
tools for
ac-
Here,
(along
album
with stored
argue
photo
is left to
user’s
defendant
information
ar-
gathered with the
in a Yahoo! re-
count
purported
statement
address)
IP
as the associated
digital
that the
chive such
offered for its truth is
port
likely
“Suspect IP Address.” I think more
majority begins
on the
19. The
its discussion
adjective
"suspect”
reports by
is used as
examin-
testimonial nature of
features,
suspicious
delineate the
address
focusing
term
ing
on the
their facial
names, not,
says,
majority
as
as the
"fields”
and user
"suspect” that is contained in some
information,
targeting specific person.
types
as
noun
that list certain
such
formation,
were the same as those Yahoo! uses to
such as the
Manage-
Account
Login
locate all information stored
ment Tool or
comput-
about
user
Tracker. The
automatically
er tool then
ordinary
the servers for its
business
accesses the
stored
It
information related to that tool and
helpful
amplify
functions.
the rec-
displays it for the
employee
point.
ord on this
data;
compile
review. Some tools
various
notes,
majority
As the
Yahoo! is an In-
tool,
Management
the Account
for exam-
which,
ternet Service
portal
Provider
ple, collects the IP address recorded when
explained,
Lee
is in
provid-
the business of
a user first creates an account and the
ing
users,
several internet services to its
registration information provided by that
*35
email,
such
searching,
as internet
“mes-
user, among other
stored information.
(as
senger,” and
of the time of the crimi-
systems
Lee testified that
these
of data
issue)
nal
photo
conduct at
album ser-
storage and
upon by
retrieval are relied
vice.
types
Various
of information or data
provide
Yahoo! to
reliable and accurate
relating to Yahoo! users and the services
data on customer accounts in order to
employed
each user
are stored on
conduct its business as an ISP. Lee ex-
servers. Such stored information includes
plained
systems
that the same
and tools
emails,
books,”
email “address
“Mends”
also are used to access stored
pertain-
data
lists,
registration information,
user
ing to users when
responds
Yahoo!
to a
login history. Data pertaining
pho-
to the
search warrant
any
legal process.
or
other
to album service—the
digital
stored
im-
absolutely
There is
no indication in this
ages
differently.
handled no
This
—was
record that
the archives for
digital
service allowed a
digi-
Yahoo! user to load
images
photo
from
albums associated with
tal images from various sources—such as
the various Yahoo! user
names
this case
an email attachment or an internet site—
(as well as the IP addresses and other
to an internet photo album associated with
account data included with each image ar-
that user’s Yahoo! account. The service
chive)
created, generated,
were
or devel-
enabled a user to
digital images
store
on a
oped outside of this routine administrative
Yahoo!
easily
server and then
share the
methodology
retrieving
for
stored user ac-
photo
stored
album with other internet
count
process
data —a
which itself neces-
by
users
sending them the URL link to
sarily links the location of the retrieved
the album’s internet
location. Once load-
stored data to
inputted.
the user name
photo album,
ed to the
the digital images
That the
digital
retrieved
images stored on
automatically
remained
stored on Yahoo!
captured
server were
electronically for
servers unless and until the user deleted
purposes
transmitting
legal
them to the
(although
them
Yahoo! also could eliminate
department
is no different from the loca-
access to the images by deactivating a
tion connection created between data and
account).
user’s
user each
types
time other
of stored data
testimony
Lee’s
shows that
type
each
(or
are
printed
retrieved and
otherwise
stored information or
pertaining
data
to transmitted)
review,
for
such as a user’s
each Yahoo! user or “screen name” is ac-
login history,
list,
“Mends”
or email “ad-
cessed
employees
using the
short,
dress book.” In
purported
loca-
same methodology. The method consists
tion
statement made
image
the stored
of a
employee,
such as one in the
archive
(along
itself
with other accompany-
customer care department,
inputting a
ing
data),
stored user
reflected
user name
particular
into a
retrieval tool Yahoo! reports, was not
pri-
made for the
associated
types
with certain
mary
of stored in-
purpose of establishing or
proving
using pre-
performed
that was
analysis
prosecution,
criminal
event for
past
or
fact
entirely
“an
new
and make
existing data”
functioning of the ISP
very
but
conclusions” drawn
reflecting [ ]
statement
generally
See
operations.
business
(“the
“analysis.”
suppose
I
such an
Williams,
primary
at 2243
132 S.Ct.
if the
could be the case
viewed this
report,
the [scientific]
purpose
for the
the Yahoo!
using
or
petitioner
to accuse
was not
objectively,
images
trial”);
of an assertion
Bull
truth
for use at
to create
(“To
suspected
or
n.
rank as
fact were
at 2714
131 S.Ct.
coming,
But,
began,
I
pri
‘testimonial,’
pornography.
must have
a statement
the sort. The
proving
nothing of
establishing
did
mary purpose
analysis
later
that a Yahoo!
relevant
conveyance
past
potentially
events
(internal quotation
images
some
performed to deem
prosecution.”
employee
criminal
omitted));
suspect
Melendez-
to be
photo
brackets
user
albums
marks and
in certain
(not
Diaz,
location link in the Yahoo! re-
ports amounts to a testimonial statement
under current Supreme precedent Court our under own cases. I disagree with
the appellant that the holdings in Melen- suggests 21. The (the defendant also in his brief illegal images dates and times of the so- that his Sixth Amendment concerns would Data”). "Image Upload called majority allayed have government pre- been had the appears also to assess the record evidence to testimony sented live computer of Yahoo! government appropri- determine whether the explain verify technician to accuracy ately through established this NCMEC evi- company's of the software tools used to re- transporting-by-uploading dence the element digital images trieve the and account data. charged in the indictment. There is no need tack, however, essentially This concedes that timing consider these issues because the reports testimony contain no witness image uploading part appellant's is not of the argument whatsoever and reduces his to one argument. Sixth Amendment There is also appellant's authentication. If this is the separately analyze no need for me to whether strategy, majority’s then the footnote remark CyberTipline the NCMEC reports contain a 803(6) probably about Rule suffices for the testimonial statement that was offered for the end, though, as well. In the I truth present matter asserted. For judgment make no on authentication because purposes I take the at its word the issue before us is confined to the Sixth essentially parroted that such evidence Amendment. reports. substance Again, of the Yahoo! I respect CyberTipline With to the NCMEC note that attempt the defendant makes no reports, majority gov- concludes that the parse types the two of documents when ad- appeared rely ernment on these documents vancing plaint. his Sixth Amendment establishing as the sole upload