Commercial Litigation and Arbitration

Text Authentication: Phone in Defendant’s Possession with Photos of Him and His Car, Contact Info for His Brother and Girlfriend, and Texts Addressed to Him Suffices to Tie Him to Outgoing Texts Absent Proof Phone Was in Another’s Possession

United States v. Ellis, 2013 WL 2285457 (E.D. Mich. May 23, 2013):

Defendant Javon Franklin Ellis is charged in a three count indictment with Felon in Possession of a Firearm pursuant to 18 U.S.C. §§ 922(g)(1) and 924(e), Possession with Intent to Distribute Marijuana pursuant to 21 U.S.C. § 841(a)(1), and Possession of a Firearm in Furtherance of a Drug Trafficking Crime pursuant to 18 U.S.C. § 924(c). On May 8, 2013, Defendant filed a Motion to Exclude Admissibility of Ingoing and Outgoing Text Messages. For the reasons stated in more detail below, Defendant’s Motion to Exclude is DENIED.


Defendant challenges the admissibility of outgoing text messages on a cellphone retrieved during his arrest. Specifically, he argues that the text messages are inadmissible hearsay and do not qualify as admissions because the Government has not offered any proof that the statements were made by Defendant. According to Defendant, the Government cannot simply offer the cellphone and then presume that Defendant sent the messages contained in the cellphone.

The Court must determine preliminary issues of admissibility. Fed.R.Evid. 104(a). The proponent of the evidence must show by a preponderance of the evidence that the offered evidence meets the requirements of admissibility. Buck v. Ford Motor Co., 810 F.Supp.2d 815, 823 (N.D. Ohio 2011) (citing Bourjaily v. United States, 483 U.S. 171, 175–76, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)). Generally, hearsay, or an out of court statement offered for the truth of the matter asserted, is inadmissible. Fed.R.Evid. 802. However, there are some exceptions. Federal Rule of Evidence 801(d)(2) provides that statements made by Defendant and offered by the Government are not hearsay. Before the Court may admit these text messages as admissions, the Court must determine whether it is more likely than not that Defendant made the statements. Bourjaily, 483 U.S. at 175–76;see also United States v. Henderson, 307 Fed Appx. 970, 977 (6th Cir. 2009) (finding that the district court properly admitted co-conspirator statements when it determined that it was more likely than not that the declarant and defendant were co-conspirators when the statements were made and the statements were made in furtherance of the conspiracy).

The Government has offered the following proofs of admissibility: (1) the cellphone was found on the Defendant, in his pocket; (2) the cellphone contained photographs of the Defendant;  (3) the cellphone contained photographs of Defendant’s Buick, which he was driving when arrested; the cellphone’s contact list included entries for Defendant’s brother and girlfriend; and (5) the cellphone contained messages addressed to “Javon” and “J,” the Defendant. Considering all this information, the Court finds that it is more likely than not that the cellphone belonged to Defendant and that the statements made on it were made by Defendant. The cellphone contained information that was personal to Defendant and messages addressed to Defendant. It is more likely than not that the owner of a cellphone would receive or maintain information on the cellphone that is personal to the owner. It is also more likely than not that the owner of the cellphone would receive messages addressed specifically to the owner of the cellphone. Given that the cellphone contained messages addressed to “Javon” and “J,” coupled with the cellphone’s retrieval on Defendant’s person, it is more likely than not that Defendant was the owner of the phone and, necessarily, the sender of the text messages contained therein. Defendant has not presented any evidence that the cellphone was borrowed or stolen or that there is another relevant individual with the name “Javon” or “J” that would have personal contacts for Defendant’s brother or girlfriend that actually owned the cellphone. The most likely conclusion is that Defendant owned the cellphone and sent the outgoing text messages contained in it. The Court deems the outgoing text messages admissible as nonhearsay pursuant to Rule 801(d)(2)(A).

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