Website Authentication Depends on Purpose of Offer — Less Needed If Not for Attribution to Person — Legal Interpretation of Federal Rules of Evidence Reviewed De Novo — Did Motion in Limine Preserve Issue? (3 Factors)
United States v. Isabella, 2019 U.S. App. LEXIS 7213 (10th Cir. Mar. 12, 2019):
Rande Isabella was convicted under 18 U.S.C. § 2422(b) of persuading and attempting to persuade S.F., a 14-year-old girl, to "engage . . . in any sexual activity for which any person can be charged with a criminal offense" (Count 1) and under 18 U.S.C. § 2251(a) and (e) of attempting to persuade S.F. to produce child pornography (Count 2). On appeal, Mr. Isabella argues (1) the evidence was insufficient to sustain his convictions; (2) the district court made six improper evidentiary rulings; and (3) his convictions and sentences under §§ 2422(b) and 2251(a) and (e) violate the Double Jeopardy Clause. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.1
B. Evidentiary Issues
1. Standard of Review
"We review legal interpretations of the Federal Rules of Evidence de novo." United States v. Guardia, 135 F.3d 1326, 1328 (10th Cir. 1998). We review evidentiary decisions applying the [*30] rules for abuse of discretion. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141-42 (1997); United States v. Gutierrez de Lopez, 761 F.3d 1123, 1132 (10th Cir. 2014). "A district court abuses its discretion when it renders an arbitrary, capricious, whimsical, or manifestly unreasonable judgment." United States v. Silva, 889 F.3d 704, 709 (10th Cir. 2018) (quotations omitted). We will not reverse a district court's evidentiary decision so long as it falls "within the bounds of permissible choice in the circumstances." United States v. Durham, 902 F.3d 1180, 1222 (10th Cir. 2018) (quotations omitted).
If a defendant did not object at trial, however, or "objected on grounds not now asserted as error, we review [the] issue for plain error." United States v. Simpson, 152 F.3d 1241, 1250 (10th Cir. 1998).18 In deciding whether a motion in limine adequately preserved the defendant's objection, we ask (1) whether the objection was adequately presented to the district court, (2) whether the issue could have been finally decided in a pretrial hearing and was not dependent on the character of other evidence, and (3) whether the district court's ruling was definitive. United States v. Mejia-Alarcon, 995 F.2d 982, 986-88 (10th Cir. 1993).
2. Evidentiary Objections
e. The websites
i. Additional background
A search of Mr. Isabella's computer revealed three website addresses he had visited during the same time period as his interactions with S.F. When Special Agent Anderson entered the addresses into a browser in 2016 (three years later), two websites showed S.F.'s name as a student at a middle school in Colorado; the third website [*45] showed her recorded time for a middle school cross-country meet in 2012. The Government printed screenshots of the websites and offered them as exhibits in its rebuttal case to prove Mr. Isabella knew S.F. was a minor. Mr. Isabella objected, arguing that the websites were not properly authenticated. The district court overruled his objection and admitted the exhibits. Mr. Isabella challenges this ruling on appeal.
ii. Legal background
Rule 901 requires "evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). In assessing an exhibit's authenticity, we ask "whether there is a reasonable probability that the evidence has not been altered in any material aspect since the time of the crime and that it reasonably has a tendency to establish facts of consequence in the action as more probable than they would be without the evidence." United States v. Brewer, 630 F.2d 795, 802 (10th Cir. 1980). Although Rule 901 serves an important gatekeeping function, "[t]he bar for authentication of evidence is not particularly high." United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007).
Courts evaluate the authenticity of websites based on the purpose for which the website is being offered.25 The Second Circuit's analysis of website authentication is instructive. United States v. Vayner, 769 F.3d 125, 131 (2d Cir. 2014). In Vayner, the district court [*46] admitted a printout of the defendant's profile on VK.com, "the Russian equivalent of Facebook." Id. at 128. The government "initially advanced the argument that it offered the evidence simply as a web page that existed on the Internet at the time of trial, not as evidence of [the defendant's] own statements." Id. at 131. But in its argument to the jury, the government "insisted that the page belonged to and was authored by [the defendant]." Id. The Second Circuit held that the website was not properly authenticated for that purpose: "[T]he mere fact that a page with [the defendant's] name and photograph happened to exist on the Internet at the time of [the investigating agent's] testimony does not permit a reasonable conclusion that this page was created by the defendant or on his behalf." Id. at 132.
The district court did not abuse its discretion in admitting the printouts of the three websites based on Special Agent Anderson's testimony. The websites were relevant and offered to show that Mr. Isabella believed S.F. was a minor. Unlike the webpage at issue in Vayner, the Government here did not introduce the exhibits to show that Mr. Isabella or S.F. [*47] had any role in their creation. See 769 F.3d at 131. The author of the websites was not relevant to the point they were used to prove, which was simply that they "existed on the Internet," see id. at 131, and Mr. Isabella's computer showed he visited the web addresses. The prosecution used Special Agent Anderson's search—which Mr. Isabella does not challenge—to show that the agent obtained the web addresses from Mr. Isabella's computer and to explain that Mr. Isabella likely visited them in 2013 during his communication with S.F.
Special Agent Anderson testified that he took the web addresses directly from Mr. Isabella's search history and entered them into an internet browser. In doing so, he viewed three separate webpages showing S.F. competed in cross country meets and was a student at a middle school in Colorado. The details of Special Agent Anderson's investigation, in particular the forensic analysis showing he retrieved the web addresses from Mr. Isabella's computer, provide "evidence sufficient to support a finding that the [websites are] what [the Government] claims [they are]," see Fed. R. Evid. 901(a), especially when we have no reason to believe they were "altered in any material aspect since the time of the crime," [*48] see Brewer, 630 F.2d at 802.
Finally, even after the websites were admitted, Mr. Isabella remained free "to challenge the reliability of the evidence, to minimize its importance, or to argue alternative interpretations of its meaning, but these and similar other challenges go to the weight of the evidence—not to its admissibility." See Vayner, 769 F.3d at 131 (quotations omitted). In short, the district court did not abuse its discretion in overruling Mr. Isabella's authentication objection.
We uphold Mr. Isabella's convictions and affirm the district court's judgment.
1 We caution the reader that the facts of this case, especially the communications between Mr. Isabella and S.F., are graphically and disturbingly sexual in nature. Because Mr. Isabella's convictions were for sexual crimes and because he is challenging the sufficiency of the evidence on appeal, we recount the evidence of his interactions to evaluate whether a reasonable jury could have found him guilty beyond a reasonable doubt and to provide an explanation of our decision.
18 Plain error requires the appellant to show: (1) error, (2) that is plain, (3) that "affect[ed] substantial rights," and (4) that seriously affects the "fairness, integrity, or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 732 (1993).
25 Compare O'Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1224 (10th Cir. 2007) (holding district court abused its discretion in failing to take judicial notice of party's website to establish damages), with Hansen v. PT Bank Negara Indon. (Persero), 706 F.3d 1244, 1249-50 (10th Cir. 2013) (holding district court did not abuse its discretion in excluding evidence of a phone number found on a website that no longer existed to argue that statements made during calls to that number were admissible). See also Powers v. Emcon Assocs., Inc., No. 14-CV-03006-KMT, 2017 WL 2718476, at *6 (D. Colo. June 23, 2017) (surveying cases in which courts excluded website printouts for lack of authentication).
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