Commercial Litigation and Arbitration

PIN Text Messages Authenticated for Rule 104(a) Purposes by Affidavit from Service Provider and Distinctive Characteristics, Primarily from Contents — Jury Is Ultimate Decisionmaker under Rule 104(b)

United States v. Kilpatrick, 2012 U.S. Dist. LEXIS 110166 (E.D. Mich. Aug. 7, 2012):

The government seeks a preliminary pretrial ruling on the authenticity of relevant text message exchanges pursuant to Federal Rule of Evidence 104(a) and (b). The evidence at issue is comprised of text messages exchanged between and among Defendants and others on two-way pager devices leased to Defendants from Sky Tel. *** Based on the government's prima facie showing that the text message exchanges are what the government purports them to be, the threshold for a pretrial determination as to authenticity under Federal Rule of Evidence 901 is satisfied.***

The government alleges that, in carrying out the charged racketeering conspiracy and assorted underlying offenses, Defendants frequently communicated with one another and other coconspirators, both charged and uncharged, via two-way pager devices. The pager devices were leased by the City of Detroit from a national paging company, SkyTel. The City provided pagers to certain authorized users, including Defendants Kwame Kilpatrick and Bernard Kilpatrick, and high-level appointees of the Mayor of Detroit. Defendant Bobby Ferguson obtained a SkyTel pager device at about the same time as the other Defendants. Defendant Victor Mercado did not have a SkyTel two-way device, but he did communicate with the other Defendants using his own handheld device.

Each SkyTel user was assigned a unique personal identification number (PIN) corresponding to the pager he or she used; these PINS were comparable to telephone numbers and were not duplicated. Defendants had hundreds of thousands of text message communications with one another and other parties, including unindicted coconspirators, on the SkyTel pagers from 2002 to 2005.

SkyTel maintained a log on its server of all text messages sent and received from every individual PIN assigned to a SkyTel pager. The log contained, among other information, the date and time when each message was sent or received; the PIN of the pager the subject pager was communicating with; and the contents of each message. The log was used by SkyTel for its own business purposes, including quality control, analytics, and trouble-shooting. The text messages themselves were stored on the server in a manner that made it impossible to alter or edit the contents of any given text. ***

The government argues that it can authenticate the text messages under Federal Rule of Evidence 901 by demonstrating that the text messages that will be introduced at trial are in fact text messages transmitted to or from Defendants on their SkyTel pagers. This Court agrees with the government. Despite Defendant Bernard Kilpatrick's arguments to the contrary, Rule 901 does not require that evidence be authenticated by a witness, and a trial court may "make a preliminary determination as to authentication [without witness testimony], admit the evidence conditionally under Rule 104(b), and then allow the jurors to be the final arbiters of whether [the evidence] was actually authenticated," i.e., that the evidence was what the proponent maintained it to be. United States v. Puttick, 288 F. App'x 242, 246 (6th Cir. 2008). In Puttick, the Sixth Circuit found the reasoning in decisions from the Second and Fourth Circuits, reaching the same conclusion on this issue, "to be compelling and comports with the language of Rule 901(a)." Id. at 247 (discussing United States v. Sliker, 751 F.2d 477, 499-500 (2d Cir. 1984), and United States v. Branch, 970 F.2d 1368, 1371 (4th Cir. 1992)).***

Here, the Court has more than enough information to make a preliminary determination of authenticity.

First, it has the sworn declaration of then-custodian of the SkyTel records, Stephen Oshinsky, that the text messages are in fact text messages exchanged between SkyTel pagers with particular PINs. This provides sufficient information for the Court to make a preliminary determination of authenticity. See United States v. Hunter, 266 F. App'x 619, 621 (9th Cir. 2008) (holding that "the government properly authenticated the text messages [at issue on appeal] by using the testimonies of the senior manager of the pagers' service provider, the FBI agent who compiled the records, and [the defendant's] coconspirators."). In his sworn declaration, Mr. Oshinsky explains that each text message sent to or from a particular SkyTel PIN is automatically stored on SkyTel's server and that SkyTel's server does not allow the original text message to be edited in any way. See Fed. R. Evid. 901(b)(9) (providing that "[e]vidence describing a process or system and showing that it produces an accurate result" as an example of evidence that satisfies Rule 901(a)'s authentication requirement). See also Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 549 (D. Md. 2007) (observing that Rule 901(b)(9) is "particularly useful in authenticating electronic evidence stored in or generated by computers."). Mr. Oshinsky also explains that he retrieved the text messages in response to the government's search warrants, that the SkyTel software generated the SkyTel spreadsheet, and that he saved that data on two compact discs which he then provided directly to the FBI. See United States v. Simms, 351 F. App'x 64, 65-66, 68 (6th Cir. 2009) (rejecting the defendant's argument that voice recording evidence was not properly authenticated because the captain who copied the CD containing those recordings did not testify and finding the foundation was sufficient where sheriff department computer specialist testified about the process how voice recordings were retrieved from the jail's computer server, saved on a CD, and then provided to law enforcement).

Defendant's argument that actual testimony is required for the preliminary pretrial evidentiary ruling on authenticity is rejected. The Confrontation Clause is not implicated when the Court makes a preliminary authentication ruling under Rule 104. See United States v. Matlock, 415 U.S. 164, 174-75 (1974); United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007) (per curiam) (holding that grand jury testimony could be used to authenticate records in a preliminary hearing under Rule 104(a) without violating the Confrontation Clause because "Crawford [v. Washington], 541 U.S. 36 (2004),] does not apply to foundational evidence authenticating business records in preliminary determinations of the admissibility of evidence.").

Second, the government has shown that the 248 text messages provided to the defense as proposed trial exhibits have distinctive characteristics that serve to authenticate them. See Fed. R. Evid. 901(b)(4) (providing that authentication may be achieved through "[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances."). See also United States v. Jones, 107 F.3d 1147, 1150 (6th Cir. 1997) (internal quotation marks and citation omitted) (observing that "the contents of a writing may be used to aid in determining the identity of the declarant.").

For example:

● Each text message displayed the PIN of the device sending and receiving the text;

● Each user entered his or her name into their SkyTel pager so when they sent a message to another pager, their name was usually automatically displayed to the recipient as the sender of the incoming message;

● Defendant Kwame Kilpatrick often used an auto-signature of "MAYOR KILPATRICK" or "MAYOR" that automatically attached to his text messages (also, rather than his name, this auto signature was often displayed as his PIN identifier when he sent a text message);

● Defendant Bernard Kilpatrick used an auto-signature containing a quote: "DON'T SWEAT THE SMALL STUFF AND REMEMBER . . . IT'S ALL SMALL STUFF;"

● On at least two of the three PINs assigned to Defendant Kwame Kilpatrick, he circulated text messages announcing that it was his "New Number" or "New Contact Info" and he signed those messages "MAYOR KILPATRICK;"

● Defendants and their associates referred to one another using nicknames in some text messages, including referring to City of Detroit Chief Administrative Officer Derrick Miller as "Zeke" and Bernard Kilpatrick as "Zizwe;"

● Defendant Kwame Kilpatrick would refer to his father, Defendant Bernard Kilpatrick, as "Pops;" and

● Language patterns were distinctive: Kwame Kilpatrick often responded to messages by writing "COOL!" and Ferguson's text messages were characterized by misspellings, typographical errors and incorrect grammar and syntax.

These and other distinctive characteristics serve to authenticate the text messages. See United States v. Safavian, 435 F. Supp. 2d 36, 40 (D. D.C. 2006) (holding that distinctive characteristics were sufficient to authenticate emails where emails contained names of senders and recipients and contents discussed various professional and personal matters); United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000) (holding that emails were authenticated by contents - including email address, automatic reply to sender, and use of nicknames - and context where messages indicated knowledge of matter at issue in obstruction charge).

In addition, as illustrated in the government's brief at 11-13, many of the text messages contain personal information that further confirm the identity of the writer. See Fed. R. Evid. 901 advisory committee's note to subdivision (b), example (4) (observing that "a document or telephone conversation may be shown to have emanated from a particular person by virtue of its disclosing knowledge of facts known particularly to him."). The text messages at issue here often contain either (1) personal or private information known only to Defendants and their closest associates; or (2) information that Defendants were privy to by virtue of their positions within the City prior to the information becoming public or widely known. See Jones, 107 F.3d at 1150 (holding that greeting card was properly authenticated where recipient of card testified that card was signed by the defendant and contained references to the defendant's family "that no one else could have written."); Safavian, 435 F. Supp. 2d at 40; Siddiqui, 235 F.3d at 1322.

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