United States v. Benford, 2015 U.S. Dist. LEXIS 17046 (W.D. Okla. Feb. 12, 2015):

A.  Text Messages

Although Defendant represents that over 3,800 text messages were retrieved from the cellphone, at issue are 12 text messages exchanged on February 11, 2014, approximately three months before Defendant's arrest on the crime charged.***

Defendant seeks to exclude admission of the text messages because they: 1) are too remote in time and, therefore, not relevant; 2) constitute inadmissible hearsay; and 3) lack authentication or identification. The government, conversely, seeks a ruling that the text messages are admissible as: 1) intrinsic evidence of the crime charged; 2) proper evidence of Defendant's knowing possession of a firearm; and 3) a party admission.

***

2.  Hearsay

Defendant further objects to the text messages on grounds they constitute hearsay. But a statement is not hearsay if it is offered against a party and is the party's own statement. Fed. R. Evid. 801(d)(2)(A). The government, as proponent of the text messages, must show by a preponderance of the evidence that defendant made the statement. See United States v. Brinson, 772 F.3d 1314, 1320 (10th Cir. 2014).

In Brinson, the Tenth Circuit determined the government had shown [*10]  by a preponderance of the evidence that the defendant was "Twinchee Vanto" and, therefore, that certain Facebook messages written by Twinchee Vanto were not hearsay but admissible as the defendant's own statements. The court held the defendant's "link" to Twinchee Vanto was established by five facts:

1. The "Twinchee Vanto" account was registered to an email address: "tarranb@ yahoo. com."

2. "Twinchee Vanto" identified himself in one message as "Tarran."

3. A witness testified that "Twinchee Vanto" had identified himself as "Tarran."

4. A phone number on the bill of sale for Mr. Brinson's SUV matched the number that "Twinchee Vanto" had given as a contact number.

5. Two witnesses testified that "Twinchee Vanto" was Mr. Brinson's "Facebook name" and that Mr. Brinson was known as "Twin."

Id. at 1321. Although the defendant presented evidence that others had access to the Facebook account, the court concluded the evidence was properly admitted as statements of a party opponent under the preponderance of the evidence standard. Id.

Here, the government contends the text messages were retrieved from the cellphone found on Defendant's person at the time of his arrest. The government intends to offer evidence that the phone was password protected and that Defendant provided his password to police at the time of his arrest. According to the government, police thereafter obtained a search warrant to search the contents of the phone. Although the text messages [*12]  at issue contain no identifying information, i.e., no names are referenced in the text messages, the government contends other text messages retrieved from the cellphone include monikers that sufficiently identify Defendant. Moreover, Defendant does not offer evidence that the cellphone did not belong to him or that some other person had access to his cellphone. Subject to appropriate identifying information presented by the government to sufficiently demonstrate Defendant authored the text messages, those messages are not inadmissible hearsay.⁷

7 Defendant does not appear to challenge the incoming messages on hearsay grounds. As the government points out, to the extent the incoming messages are not offered to prove the truth of the matter asserted, but are included to provide context for the outgoing messages attributed to Defendant, they are not hearsay. See, e.g., United States v. Gajo, 290 F.3d 922, 930 (7th Cir. 2002) ("statements are not hearsay to the extent they are offered for context and not for the truth of the matter asserted"); see also United States v. Ellis, Case No. 12- CR-20228, 2013 WL 2285457 at * 2 (E. D. Mich. May 23, 2013) (unpublished op.) (incoming text messages "in the form of questions and commands are not statements because they do not contain an assertion and, therefore, are not inadmissible hearsay"); United States v. Ailsworth, 948 F. Supp. 1485, 1490 (D. Kan. Nov. 18, 1996) (statements of confidential informant captured on audiotape and videotape offered only for context for statements of defendant and his coconspirators were not hearsay as they were not offered for truth of the matter asserted).

3.  Authentication

Defendant contends the text messages lack sufficient authentication or identification because "[t]he persons inputting the text messages into the devices are unseen and unknown." See Defendant's Motion at p. 9. Defendant further contends "the senders and recipients [are not] identified by appearance, contents, substance, internal patterns or other distinctive characteristics." Id. The government contends that if authentication of [*13]  the text messages is challenged at trial, it will seek to admit [*14]  additional text messages containing identifying information for this purpose.⁹

9 Otherwise, as set forth infra, the government has represented that it does not intend to introduce evidence of monikers and other identifying information allegedly attributed to Defendant. Defendant has challenged the admission of any evidence of monikers as unduly prejudicial. Neither party has identified any specific evidence for the Court's review. Nevertheless, any such foundational evidence may be presented [*15]  to the Court outside of the hearing of the jury under Fed. R. Evid. 104(a), (c).

Rule 901(a) of the Federal Rules of Evidence provides that to authenticate an item of evidence, "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Rule 901(b) includes examples of evidence that satisfies this requirement including "Evidence About a Telephone Conversation." See Fed. R. Evid. 901(b)(6).¹⁰ Rule 901(b)(6) only addresses "how the identity of an answering party may be established" and "says nothing about the identify of a calling party." See Wright & Gold, Federal Practice and Procedure, Evidence § 7111, p. 117-18 (2000). However, courts have considered the same type of evidence to establish both the identify of an answering party and a calling party. Id. Commentators have addressed whether Rule 901(b)(6) applies to text messages:

Modern technology poses some preliminary questions concerning the scope of Rule 901(b)(6). One question is whether the provision applies where the issue is the identity of the sender of a fax, e-mail message, internet communication, beeper message, or other nonvocal transmission of information carried over telephone lines. The literal language of the rule suggests it does not apply since an exchange employing one of these forms of communication is not a "conversation" in the sense normally intended by that word. On the other hand, the criteria enumerated by Rule 901(b)(6) as being pertinent to identity have nothing to do with the sound of a voice, which instead is the subject of Rule 901(b)(5). Accordingly, limited authority suggests that Rule 901(b)(6) does [*16]  apply to nonvocal communications over telephone lines. However, it might be argued that more should be required to identify the source of these non-vocal messages since the risk of fraud presented by these modern technologies may be significant and, in some instances, not yet fully understood.

Id., § 7111 at p. 111 (citations omitted). The Court is not aware, however, of any decision applying Rule 901(b)(6) to text messages.

10 Rule 901(b)(6) provides:

Evidence About a Telephone Conversation.

For a telephone conversation, evidence that a call was made to the number assigned at the time to:

(A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or

(B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

Fed. R. Evid. 901(b)(6).

Without reference to Rule 901(b)(6), to address the authentication of text messages courts have relied on identifying information contained on the cellphone or within the content of the text messaging to establish that the requirements of Rule 901 are satisfied. See, e.g., United States v. Mebrtatu, 543 Fed. Appx. 137, 140-41 (3d Cir. 2013) (finding government presented "substantial evidence from which a jury could infer" the text messages were authentic and attributable to the defendant where the device containing the messages was seized from the defendant's person and "the content of the text messages indicate[d] that [the defendant] was the user of the seized phone and hence the sender and receiver of the messages found on the phone"); see also Ellis, 2013 WL 2285457 at *1 (finding it "more likely than not" that the defendant authored outgoing text messages on [*17]  cellphone retrieved during his arrest where the cellphone was found on the defendant during his arrest, the cellphone contained photographs of the defendant and contact entries for the defendant's brother and girlfriend, the cellphone contained messages addressed to the defendant and the defendant did not present any evidence that the cellphone was borrowed or stolen).

As set forth above, the government intends to offer evidence to establish the cellphone belonged to Defendant and that it is more likely than not that Defendant authored the text messages at issue based on identifying information contained in other text messages. Because that evidence is not presently before the Court, the Court reserves ruling on the admissibility of the text messages at this time.