Saturday, May 7, 2011
Word Perfect?: 11th Circuit Finds Prosecution Properly Authenticated IMs Cut-And-Pasted Into Word Document
On Wednesday, I posted an entry about the Court of Appeals of Maryland finding that the prosecution failed to properly authenticate a MySpace page containing a threat to prospective witness as one belonging to the defendant's girlfriend. Today's post deals with the recent opinion of the Eleventh Circuit in United States v. Lanzon, 2011 WL 1662901 (11th Cir. 2011), which dealt, inter alia, with the issue of whether he prosecution properly authenticated instant messages cut-and-pasted into a Microsoft Word document.In Lanzon,
Detective George Clifton, a member of the Miami–Dade Police Department's Sexual Crimes Bureau, signed online using the undercover persona "Tom." Detective Clifton created an AOL profile for "Tom" that described him as a male living with his girlfriend and his girlfriend's 14–year–old daughter. "Tom" entered an internet chat room entitled "Florida Couples.” [Keith] Lanzon, under the username "SlingerHD," was a participant in this chat room. Lanzon and Detective Clifton then communicated by instant message for approximately 30 minutes.
At the beginning of their text conversation, Lanzon asked, "she play too?" Detective Clifton replied, "yes."Lanzon stated that he had "never crossed into that situation yet." Lanzon asked Detective Clifton to describe the 14–year–old daughter's appearance, and indicated his interest in meeting her. Detective Clifton asked what Lanzon wanted to do with the 14–year–old, and Lanzon responded, "[I] love oral," "hot passionate sex," and "totally satisfying a female." Detective Clifton and Lanzon arranged to speak again later.
Detective Clifton and Lanzon later IM'd on two later occasions, and the two set up a meeting at a bookstore, during which Clifton would introduce Lanzon to the 14 year-old daughter, and Lanzon would take her to a hotel for sexual intercourse.
Detective Clifton saved these online conversations by copying the instant message communications and pasting them into a Microsoft Word document. He then saved the Word document to a floppy disc, where the conversations could be printed in hard copy form as transcripts. Detective Clifton did not save any of the instant message conversations in their original format to his computer's hard drive, but he compared the actual instant message "chat screens" to the word processing document he had created to ensure that they exactly matched and that he had accurately recorded the conversations in their entirety.
Thereafter, "Lanzon drove to the designated bookstore and parked his truck near the bookstore. When he entered the bookstore, he approached...two undercover officers posing as 'Tom' and the 14–year–old girl. He was promptly arrested." He was later charged with violating 18 U.S.C. § 2422(b), which provides that
Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.
At trial, the prosecution introduced the Microsoft Word document with the cut-and-pasted IMs, and, after he was convicted, Lanzon appealed, claiming, inter alia, that the document was improperly admitted. Lanzon claimed that the admission of the document violated the Due Process Clause and the Best Evidence Rule, but the Eleventh Circuit easily turned these arguments aside, finding that Lanzon failed to prove bad faith by the government is failing to preserve the original IMs. The court also turned aside Lanzon's rule of completeness argument, finding that "[t]here [wa]s no indication that additional parts of the conversation exist[ed]."
FInally, Lanzon claimed that the prosecution failed to properly authenticate the Word document, but the Eleventh Circuit again disagreed, finding that
Pursuant to FRE 901(a), a document submitted as evidence must be properly authenticated "by evidence sufficient to support a finding that the matter in question is what its proponent claims." Evidence may be authenticated through the testimony of a witness with knowledge. FRE 901(b)(1). The proponent need only present enough evidence "to make out a prima facie case that the proffered evidence is what it purports to be."...
The district court did not abuse its discretion by admitting the transcripts, or clearly err in accepting as fact Detective Clifton's authenticating testimony. Detective Clifton testified that he participated in the online chats and the transcripts were accurate copies of those conversations. His testimony was sufficient "competent evidence" to authenticate the transcripts....