Commercial Litigation and Arbitration

Text Authentication: Phone in Person’s Possession; Contains Texts Sent to and Signed with Her First Name, Including Texts from Boyfriend Professing Love and Other Texts Whose Content Links them to Her = Sufficient Evidence

United States v. Mebrtatu, 543 Fed. Appx. 137, 140-41 (3d Cir. 2013):

Promise Mebrtatu appeals from the District Court's final judgment of conviction and sentence and requests a new trial. Mebrtatu raises two issues on appeal: (1) whether the District Court properly denied Mebrtatu's motion to suppress physical evidence obtained during a vehicle search, and (2) whether the District Court properly denied Mebrtatu's motion in limine to exclude text messages retrieved from a cellular phone found on her person. For the reasons that follow, we affirm the District Court's denial of Mebrtatu's motion to suppress and motion in limine.

I. Factual and Procedural Background

On March 31, 2011, a grand jury in the Eastern District of Pennsylvania returned an indictment charging  [**2] Promise Mebrtatu and three other individuals with participating in a conspiracy to commit bank fraud and aggravated identity theft and with substantive acts of bank fraud and aggravated identity theft. Before trial, Mebrtatu, along with co-defendants Markcus Goode and Milan Douglas, filed a motion to suppress physical evidence recovered during Vermont state troopers' search of the rental car in which they were traveling.

Co-defendant Goode's niece, Charmaine Mitchell, rented the car in question from Dollar Rental Car, and Goode was driving the car when it was stopped and searched. Mebrtatu, along with Milan Douglas and Jessica Randolph, were passengers in the car at the time.***

Mebrtatu and her co-defendants subsequently filed a motion in limine to exclude several exhibits, including the LM GM730 cellular phone recovered from Mebrtatu during her arrest and the text messages found on that phone. ***

B. Motion In Limine

On appeal, Mebrtatu argues that the District Court erred in denying her motion in limine to exclude text messages found on the seized cellular phone. In particular, Mebrtatu asserts that the government did not have sufficient evidence to authenticate the messages and attribute them to her.

We affirm the District Court's denial of Mebrtatu's motion in limine. Rule 901 of the Federal Rules of Evidence governs the requirements for authenticating evidence. Pursuant to Rule 901, "[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). Rule 901(b) provides a non-exhaustive list of examples of appropriate methods for authenticating evidence. These include: "[t]estimony that an item is what it is claimed to be" and "appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances." Fed. R. Evid. 901(b)(1), (4).

The government's "burden of proof for authentication is slight. All that is required is  [**8] a foundation from which the fact-finder could legitimately infer that the evidence is what the proponent claims it to be." United States v. Reilly, 33 F.3d at 1425 (citation and internal quotation marks omitted). As we previously explained:

   [T]here need be only a prima facie showing, to the court, of authenticity, not a full argument on admissibility. Once a prima facie case is made, the evidence goes to the jury and it is the jury who will ultimately determine the authenticity of the evidence, not the court. The only requirement is that there has been substantial evidence from which they could infer that the document was authentic.

The government has presented substantial evidence from which a jury could infer that the text messages in question were authentic and attributable to Mebrtatu. First, as Trooper Lora testified at trial, the device containing these text messages was found on Mebrtatu's person. C.f. United States v. Turner, 718 F.3d 226, 233 (3d Cir. 2013) (holding that foreign bank documents found inside a person's home were properly authenticated); United States v. McGlory, 968 F.2d at 329  [**9] (holding that notes found in the trash outside the defendant's residence were properly authenticated).

Second, the content of the text messages indicates that Mebrtatu was the user of the seized phone and hence the sender and receiver of the messages found on that phone. C.f. Turner, 718 F.3d at 233 (holding that the documents' contents supported a finding of authenticity, since these documents were addressed to the defendant's co-conspirator and several  [*141]  were responsive to the co-conspirator's faxes). Numerous text messages received by each of the three numbers associated with the phone were sent to "Promise." Moreover, in one of the text messages sent from that phone, the sender identified herself as "Promise." Another indicator that Mebrtatu used the phone in question is that several text messages sent and received by each of the three phone numbers referred to "markcus," and text messages stated "I love you Markcus." App. 28, 43. The content of these messages, taken together with the fact that Markcus Goode identified Promise as his girlfriend of eight months, provides evidence of their authenticity. Finally, the government correctly notes that the phone contained other text messages  [**10] whose content, when considered in conjunction with Jessica Randolph's testimony, supports a finding of authenticity.

In sum, the government produced sufficient evidence to satisfy its slight burden of proof for authentication. Therefore, we conclude that the District Court did not abuse its discretion in ruling that the text messages were properly authenticated.

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