Commercial Litigation and Arbitration

Web Chats on Party’s Computer Authenticated by His Admission He Used Name Used in Chats — Also Admissible As Circumstantial Evidence Linking Him to Material — Unknown Speakers’ Messages Admissible as Context for Responses

United States v. Manning, 2014 U.S. App. LEXIS 76 (8th Cir. Jan. 3, 2014):

i. Chat Transcripts

Manning argues that the district court abused its discretion in admitting chat transcripts related to the usernames "boost_virgin" and "mem659" discovered on Manning's computer. These chat conversations were used to establish Manning's interest in trading child pornography online, as well as his sexual interest in children. Manning renews his objection here that the chats constitute hearsay because they were offered to prove that Manning was the speaker in the chats even though the district court allegedly did not make a preliminary finding of fact under Federal Rule of Evidence 104(a) as to whether Manning was one of the persons engaged in the chats. Alternatively, Manning asserts that the government did not establish by a preponderance of the evidence that Manning was one the persons in these conversations. Manning also challenges the admission of the statements in the chat transcripts made by his chat conversation partners, arguing that such statements are hearsay not within any exception.

Manning's arguments concerning the admissibility of the chats are unpersuasive. Before admitting portions of the transcripts of the online chat conversations into evidence, the district court heard extensive arguments from Manning's counsel that the chats constituted inadmissible hearsay and did not sufficiently identify Manning as the person operating under the usernames "boost_virgin" and "mem659." In ruling on admissibility, the district court confirmed that portions of the chats contained identifying information about Manning. In addition, the government presented testimony of a law enforcement officer who helped to execute the search warrant, and the officer testified that the defendant admitted adopting the username "mem659" for his computer account. The username for his computer account was the same one used in some of the chats.

Such identifying information, coupled with the undisputed fact that the chats were found on Manning's personal laptop found in a home where he lived alone, was sufficient for the district court to find that Manning was the person participating in the chats

under the usernames "boost_virgin" and "mem659." Accordingly, we hold that the court did not abuse its discretion in admitting the chats into evidence.

Footnote 2.     To the extent Manning argues the district court made no explicit finding that one of the speakers in the chats was Manning, we disagree. In any event, such an argument is without merit, as the district court made at least an implicit finding and is not required to make an explicit finding in its admissibility determination. See Wright, et al., Preliminary Fact Determinations by Judge--Procedure,  21A Fed. Prac. & Proc. Evid. § 5053.6 (2d ed.) (noting that F.R.E. 104(a) "does not require the judge to make explicit findings of fact") (emphasis added).

The chats were admissible for an additional reason: as circumstantial evidence (i.e., a non-hearsay purpose) associating Manning with the child pornography found on his computer. In United States v. Koch, 625 F.3d 470 (8th Cir. 2010), our court affirmed a district court's decision to admit evidence of documents found on a computer and flash drive that contained information identifying the defendant. Id. at 479-80. This court held that it was within a trial court's discretion to admit the documents as circumstantial evidence associating the defendant with the computer and flash drive (both of which contained illegal images). Id. at 480. As in Koch, here the chat transcripts found on the computer can alternatively be construed as circumstantial evidence connecting Manning to the child pornography on the computer and on the Memorex disc discovered near the computer. In other words, no matter how the chat conversations are characterized, the district court was within its discretion to admit them.

Further, the statements of the unknown parties to the chat conversations with Manning were not hearsay because the statements were not offered for their truth but rather to provide context for Manning's responses. In United States v. Cooke, 675 F.3d 1153 (8th Cir. 2012), this court held that an unknown individual's statements in a sexually explicit email exchange with a defendant were not hearsay because the unknown individual's statements were not offered for their truth. Id. at 1156. For example, the unknown person's statement: "I am 16 is that okay?" provided context for the defendant's response: "thats cool that ur young, but I don't want u to narc." Id. Our court held that the unknown person's statement provided context for the defendant's response and that the truth of the statement was immaterial. Id. at 1156-57; see also United States v. Burt, 495 F.3d 733, 738-39 (7th Cir. 2007) (concluding that online chat conversations discussing child pornography were not offered for their truth but to provide context for defendant's admissions).

The same analysis applies to this case. The statements of the unknown participants in the chat conversations found on Manning's computer were not offered for their truth, but to provide  context for Manning's responses--responses that revealed Manning's identity, his preferences for different types of child pornography, and his desire to exchange child pornography with other people online. The district court was within its discretion in admitting the conversations.


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