Commercial Litigation and Arbitration

Text Authentication: Incoming Texts on Phone That Has Independently Been Authenticated as The Alleged Recipient’s Are Not Hearsay When They Consist of Questions or Commands, or Are Offered to Show The Fact The Statements Were Made


United States v. Ellis, 2013 WL 2285457 (E.D. Mich. May 23, 2013) (the discussion in this case concerning authentication of outgoing texts is contained in our post of February 20, 2015):


*2 Defendant also argues that all incoming text messages should be excluded as inadmissible hearsay. He contends that the statements are not admissible as co-conspirator statements because the Government has not identified the speakers and has not charged Defendant with conspiracy. The Court admits the incoming text messages for several reasons.

First, many of the text messages are questions or commands; questions and commands are not statements covered under the hearsay rule. United States v. Wright, 343 F.3d 849, 865 (6th Cir. 2003) (“a question is typically not hearsay because it does not assert the truth or falsity of a fact. A question merely seeks answers and usually has no factual content.”); see also United States v. Rodriguez–Lopez, 565 F.3d 312, 314–15 (6th Cir. 2009). The text messages that are in the form of questions and commands are not statements because they do not contain an assertion and, therefore, are not inadmissible hearsay.

Second, the text messages are not offered for the truth of the matter asserted but rather because they were made. Although an out of court statement offered for the truth of the matter asserted is generally inadmissible, the Government may offer a statement simply because it was said. Rodriguez–Lopez, 565 F.3d at 314. Here, the Government seeks admission of the incoming text messages as circumstantial evidence that Defendant possessed marijuana with intent to distribute it. Although the matter indirectly touches on the truth of the statements, it is the fact that several individuals would proposition Defendant about marijuana, not whether the marijuana was quality or whether the buyer could pay for it, that is probative of the crime charged. See Rodriguez–Lopez, 565 F.3d at 314–15 (“The fact that Rodriguez received ten successive solicitations for heroin is probative circumstantial evidence of his involvement in a conspiracy to distribute heroin.”); see also United States v. Boyd, 640 F.3d 657, 664 (6th Cir. 2011) (“Davidson’s statements to Boyd were properly admitted as non-hearsay offered to prove Boyd’s knowledge of the carjacking and murders.”).

Third, the statements are admissible as statements by a co-conspirator. Defendant argues that the Government cannot offer the text messages as co-conspirator statements because Defendant was not charged with conspiracy and the identity of any co-conspirator is unknown. However, the Government charging Defendant with conspiracy does not appear to be a pre-requisite to admitting statements by a co-conspirator under Rule 801(d)(2)(E). Rather, the Government must show by a preponderance of the evidence that (1) there was a conspiracy, (2) the defendant was a member of that conspiracy, and (3) the offered statements were made in furtherance of that conspiracy. United States v. Clark, 18 F.3d 1337, 1341 (6th Cir. 1994). The statement itself is properly considered evidence of a conspiracy. Id. at 1341–32. “An anonymous statement may be admissible under Rule 801(d)(2)(E) if circumstantial evidence permits a finding by a preponderance of the evidence that there was a conspiracy involving the author and the defendant, and the statement was made in the course and furtherance of the conspiracy.” United States v. Martinez, 430 F.3d 317, 326 (6th Cir.2005). The Government must show that it was more likely than not that the unknown declarant is a co-conspirator. United States v. El–Mezain, 664 F.3d 467, 505–06 (5th Cir. 2011). A statement is inadmissible as a co-conspirator statement when the statement is made after the conspiracy has ended. Krulewitch v. United States, 336 U.S. 440, 442, 69 S.Ct. 716, 93 L.Ed. 790 (1949).

*3 The Government offers the following proofs to show that Defendant and unknown declarants were members of a conspiracy to sell/buy drugs in violation of 21 U.S.C. § 846:(1) when arrested, Defendant had marijuana and a stolen, loaded gun, (2) there were photographs of marijuana plants and large amounts of cash on Defendant’s cellphone; and (3) the text messages on the cellphone are indicative of drug dealing and are addressed to Defendant. Considering all this evidence, the Court finds that it is more likely than not that Defendant and the unknown declarants were members of a conspiracy to sell/buy drugs. The declarants made various requests for drugs and discussed other drug related matters with Defendant. The solicitation of drugs and discussion of other drug related matter, such as the quality of the marijuana, would necessarily further the objective of a conspiracy to buy/sell drugs. Accordingly, the incoming text messages may be admissible as statements by a co-conspirator because they were made to further the objectives of that conspiracy. See United States v. Hitow, 889 F.2d 1573, 1581 (6th Cir.1989) (“Statements that have been found to be ‘in furtherance of’ conspiracies include statements identifying other conspirators and their roles in the conspiracy, statements to inform other conspirators of the activities or status of the conspiracy, and statements as to the source or purchaser of controlled substances.”) (internal citations omitted). However, the Government must establish in each instance that the transaction has elements that are indicative of conspiracy and not a simple sale. United States v. Deitz, 577 F.3d 672, 681 (6th Cir.2009) (noting that the Court should consider the following factors when determining whether a drug sale is part of a larger conspiracy: (1) length of relationship; (2) established method of payment; (3) extent that transactions are standardized; and (4) level of mutual trust between buyer and seller).

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