Commercial Litigation and Arbitration

Internet Chat, Text and Instant Messages — Authentication, Best Evidence and Rule-of-Completeness Issues

United States v. Lanzon, 639 F.3d 1293 (11th Cir. 2011):

On September 8, 2005, 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." 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, "***?" Detective Clifton replied, "yes." Lanzon stated *** [and] asked Detective Clifton ***.

Later that day, Lanzon contacted Detective Clifton, resulting in an hour and 20 minute text conversation. *** They proceeded to discuss a time to meet. ***

During their third and final conversation, Lanzon again contacted Detective Clifton and asked ***. Lanzon said he would prefer to meet them that day around noon, and asked where they could meet. Detective Clifton suggested a bookstore in Aventura, Florida, where they could have a cup of coffee and then "take care of business." Lanzon said, "sounds perfect," and asked ***. Detective Clifton replied t***. The two described to each other what they would be wearing, and Lanzon asked what kind of candy the girl liked. Detective Clifton responded, "she loves peppermint." Lanzon asked for directions to the bookstore, and said he would follow Detective Clifton to the hotel.

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.

On September 9, 2005, Lanzon drove to the designated bookstore and parked his truck near the bookstore. When he entered the bookstore, he approached the two undercover officers posing as "Tom" and the 14-year-old girl. He was promptly arrested. ***

Lanzon next contends that Detective Clifton failed to preserve computer evidence and the instant message transcripts should not have been admitted at trial. ***

Lanzon makes four arguments regarding the failure to preserve computer evidence. First, he argues that the destruction of the original files and admission of the transcripts violated his due process rights because the originals were destroyed in bad faith. The loss of evidence by the government is a denial of due process only when the defendant shows that "the evidence was likely to significantly contribute to his defense." United States v. Revolorio-Ramo, 468 F.3d 771, 774 (11th Cir. 2006). The defendant must also show that the loss of evidence was a result of bad faith on the part of the government or police. Id.

Lanzon has not provided evidence of bad faith on the part of Detective Clifton. He alleges that Detective Clifton deliberately destroyed and failed to preserve evidence when he transferred the instant message conversations to Word documents, but fails to support this contention with evidence. In response, Detective Clifton testified that he preserved the conversation in the standard method he learned at the police department and that 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. He further testified that his preservation method was intended to conserve hard drive memory on his computer. He also testified about his methods for saving the conversations in their entirety without any editing, and he was found to be credible. Lanzon offered no evidence showing that the transcripts were edited or altered.

Second, Lanzon argues that the admission of the transcripts violated the authentication requirement of Federal Rule of Evidence ("FRE") 901(a) because the detective transferred the instant messages to a Microsoft Word document, preventing authentication and leading to possible manipulation and error. 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." United States v. Caldwell, 776 F.2d 989, 1002 (11th Cir. 1985). "A district court has discretion to determine authenticity, and that determination should not be disturbed on appeal absent a showing that there is no competent evidence in the record to support it." United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000).

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. Siddiqui, 235 F.3d at 1322; Caldwell, 776 F.2d at 1002. We have held that transcripts were properly admitted even when a person who was involved with creating them testified about their authenticity and more steps were involved in their creation than there were in the present case. See United States v. Puentes, 50 F.3d 1567, 1577 (11th Cir. 1995) ("The inspector testified that he heard every conversation that was contained in the transcripts; that the conversations were then written out in longhand; that the longhand transcription was then compared to the recorded conversation; and, finally, that the longhand transcript was then dictated to a secretary and the typewritten product compared to the longhand transcription.").

Third, Lanzon contends the transcripts violated the best evidence rules in FRE 1001-1004 because the originals were destroyed by Detective Clifton in bad faith and the transcripts were not the equivalent of photocopies. The best evidence rule requires the proponent to produce the original to prove the contents of a writing, recording, or photograph. FRE 1001; United States v. Howard, 953 F.2d 610, 612 n.1 (11th Cir. 1992). An original is not required if it is lost or destroyed, except when lost or destroyed through bad faith, or if it is otherwise unobtainable. FRE 1004(1)-(2). A duplicate is admissible to the same extent as an original, "unless (1) a genuine question is raised as to the authenticity of the original, or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." FRE 1003. A "duplicate" includes a "counterpart produced by the same impression as the original . . . or by mechanical or electronic re-recording . . . or by other equivalent techniques which accurately reproduces the original." FRE 1001(4).

The district court did not abuse its discretion in rejecting Lanzon's best evidence objection because there was no showing of bad faith. Accordingly, the transcripts were admissible under Rule 1004 because they contain evidence of the conversations and the originals were not destroyed in bad faith. It is therefore immaterial whether the transcripts are duplicates within the meaning of the rules.

Fourth, Lanzon argues the admission of the transcripts violated the rule of completeness in FRE 106 because Detective Clifton failed to include the entire chat transcript, and included only the edited portion that supported his case. The rule of completeness provides that when "a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." FRE 106. FRE 106 "does not automatically make the entire document admissible." United States v. Simms, 385 F.3d 1347, 1359 (11th Cir. 2004). Rather, "[i]t is consistently held that the rule permits introduction only of additional material that is relevant and is necessary to qualify, explain, or place into context the portion already introduced." Id.

The district court did not abuse its discretion by failing to admit the alleged additional parts of the instant message transcripts. There is no indication that additional parts of the conversation exist. Lanzon also does not suggest how additional material would "qualify, explain, or place into context" the portion admitted into evidence. See id.

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