Commercial Litigation and Arbitration

Social Media — Chats and Texts Authenticated by One Party to Conversations Who Lacked Motive to Falsify — Corroborating Circumstances for Text Authentication

United States v Lundy, 2012 WL 1021795 (5th Cir. Mar. 28, 2012):

In August 2006, Lundy was a 23 year old attending Delta State College in Cleveland, Mississippi and residing in Hollandale, Mississippi. Using the name ‘Jarious Johnson’, Lundy made contact with and engaged in a string of sexually laced text message and phone conversations with a girl he thought to be 15 year old “Madison Scruggs” but who in actuality was undercover Deputy Sheriff Joseph Giroux of the Lee County Sheriff’s Department.

Lundy and Madison engaged in multiple conversations over the course of a week, including a phone conversation in which Lundy spoke to a female friend of Giroux’s who posed as Madison. Lundy and Madison agreed to meet at the Cracker Barrel near Tupelo, Mississippi and then travel to her house to have sex. On the night of the meeting, Lundy arrived at the parking lot while having a phone conversation with the woman he believed to be Madison. He was arrested and charged with violation of 18 U.S.C. § 2422(b) for:

knowingly us[ing] facilities in interstate commerce, that is, Yahoo Internet messaging and cellular telephone conversations and text messaging, to attempt to persuade, induce and entice a 15–year–old minor to engage in sexual activity with him which could constitute the crime of statutory rape for which DAMION LUNDY, a/k/a “damionlundy,” could be prosecuted under the law of the State of Mississippi. ***

a. Chat Conversations

*7 With regard to the chat conversations, there is no clear precedent in this circuit indicating what may be used for authentication. The government points to cases outside of this circuit where a detective testifying that the transcripts were an accurate reflection of the chats was enough to authenticate. See Porter v. United States, No. 08–CV–1497, 2008 WL 5451011, at *3 (E.D.N.Y. Dec. 31, 2008) (dismissing a claim that a Word copy of the chats was not properly authenticated). Lundy points to Slattery v. United States, No. 2:98CR125–B, 2005 WL 2416339, at *7–8 (N.D.Miss. Sept. 30, 2005), where a court found the chat conversations were not reliable because there was evidence of modification. In Slattery, the person verifying the chats was also a government witness, but one who had a motive to change or alter the texts because it was suspected he was involved in the same pedofile scheme as the defendant in the case. Id. In this case, it is a stretch to compare the authentication provided by Giroux with the potential pedophile in Slattery and Giroux’s testimony that the chats are as he recorded them is enough to meet the low threshold for authentication. After that, Giroux was subject to cross-examination on his biases and methodology and the jury rejected or discounted those biases or flaws by finding Lundy guilty. Lundy’s arguments about authentication of the chats are therefore unavailing. ***

c. Linking Lundy to the Chats and Texts

Finally, Lundy argues that there was inadequate authentication to prove that he was the one exchanging the text messages with Madison. He also argues that some of the conversations were missing, and that in reality, someone other than Lundy was in on the chats. While some of the texts and phone calls were placed on other phones, the fact that Lundy was on the phone talking with Madison when he was arrested is enough to meet the low burden for authentication. After that, it was up to the jury to decide whether or not they believed Lundy’s story that another person borrowed his phone, that Lundy had blocked Madison’s number from texting him, and that he had called her at Cracker Barrel to figure out who the ‘random’ person texting him was. Although these assertions strike us as implausible, that was up to the jury to decide. The jury heard and rejected this convoluted story and Lundy should not be able to turn what is in reality a sufficiency of the evidence argument into a lack of proper authentication argument. Lundy also briefly alludes to a hearsay problem with the texts, but fails to adequately brief this argument, thus waiving the issue.

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