Chat Log Sufficiently Authenticated by Use of Name Defendant Also Used in Email Address, by Multiple References to His Email Address and by Defendant’s Self-Identification — Identity Is Jury Question (Rule 104(b))

United States v. Masters, 2015 U.S. App. LEXIS 9243 (9th Cir. June 3, 2015):

Defendant Ryan Masters appeals his conviction for four counts of possession of 15 or more counterfeit or unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3) and (c)(1)(A)(i), one count of conspiracy to possess such devices in violation of 18 U.S.C. § 371, and one count of aggravated identity theft during and in relation to these possession offenses in violation of 18 U.S.C. § 1028A(a)(1). Masters also challenges various aspects of his sentence and accompanying restitution order. We have jurisdiction under 28 U.S.C. § 1291.

The district court did not abuse its discretion when it concluded that the chat log was properly authenticated under Rule 901(a) of the Federal Rules of Evidence because a reasonable juror could conclude that the user "Veovis" was Ryan Masters from the multiple references [*2]  made to Masters and his email account, veovis@gmail.com, throughout the chat log. See United States v. Tank, 200 F.3d 627, 630-31 (9th Cir. 2000). Although the user "TuzzTuzz" suggested that he thought he was speaking to someone else at one point in the conversation, Veovis immediately responded "This is Ryan."

Viewing the evidence in the light most favorable to the prosecution, see Jackson v. Virginia, 443 U.S. 307, 319 (1979), a jury could reasonably conclude beyond a reasonable doubt that Masters possessed 15 or more access devices from Whitaker Bank (Count Two) and Account Now (Count Three) that were capable of being used, see United States v. Onyesoh, 674 F.3d 1157, 1159-60 (9th Cir. 2012), based on emails indicating that at least 50 of the Whitaker Bank cards had positive balances, and testimony that Account Now had issued each of the 996 customer card numbers Masters provided to Newsome to customers, even if some of the card numbers were expired. See id.

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