United States v. Cameron , 699 F.3d 621 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1275
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES M. CAMERON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, U.S. District Judge]
Before
Torruella, Howard, and Thompson,
Circuit Judges.
Peter Charles Horstmann, with whom Partridge, Ankner &
Horstmann, was on brief for appellant.
Anthony Vitarelli, Assistant United States Attorney, Criminal
Division, Appellate Section, with whom Lanny A. Breuer, Assistant
Attorney General, John D. Buretta, Acting Deputy Assistant Attorney
General, Thomas E. Delahanty II, United States Attorney, and
Margaret D. McGaughey, Assistant United States Attorney, was on
brief for appellee.
November 14, 2012
TORRUELLA, Circuit Judge. Following a bench trial in the
U.S. District Court for the District of Maine, Defendant-Appellant
James M. Cameron ("Cameron") was convicted of thirteen counts for
crimes involving child pornography. Cameron now appeals,
challenging various rulings by the district court before and after
the trial. The challenged rulings include: (1) the denial of a
motion to dismiss the indictment for insufficiency and for improper
venue, United States v. Cameron (Cameron I), 662 F. Supp. 2d 177(D. Me. 2009); (2) the denial of a motion to suppress evidence
allegedly seized in violation of the Fourth Amendment, United
States v. Cameron (Cameron II), 729 F. Supp. 2d 418 (D. Me. 2010);
(3) the denial of a motion in limine to exclude certain evidence on
Confrontation Clause grounds, United States v. Cameron (Cameron
III), 733 F. Supp. 2d 182 (D. Me. 2010); and (4) the calculation of
the number of child pornography images attributable to Cameron for
sentencing purposes.
This case presents complex questions of first impression
in this Circuit regarding the admissibility of evidence in the wake
of the Supreme Court's recent Confrontation Clause jurisprudence.
After careful review, we conclude that the admission of certain
evidence violated Cameron's Confrontation Clause rights. We
further conclude that the admission of this evidence was harmless
as to some counts of conviction (Counts Six, Seven, Nine, Ten,
Twelve, Thirteen, and Fifteen), but not as to others (Counts One,
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Three, Four, Five, Eleven, and Fourteen). We thus reverse
Cameron's convictions on certain counts and remand for re-
sentencing, or a new trial if the government wishes to so proceed.
I. Background
A. Business and Regulatory Background
Before delving into the particular facts of Cameron's
case, we recite some background facts regarding the technologies,
business practices, and regulations at issue here.
During 2006 and 2007, Yahoo!, Inc. ("Yahoo!") offered a
service (which has since been discontinued) called "Yahoo! Photo"
that allowed users to upload photographs to the Internet. Users
could then share photographs with other Yahoo! Photo users. Each
Yahoo! Photo album was linked to a particular Yahoo! "user" or
"account." In turn, each "account" was designated by a "Login
Name" (sometimes referred to as a "username" or "screen name"),
such as "lilhottee00000," one of the screen names at issue in this
case. A Yahoo! user might use multiple other Yahoo! services in
addition to Yahoo! Photo, such as email.
Whenever a person created a Yahoo! account, Yahoo!
recorded certain information, some of which was captured
automatically and some of which was entered by the person who
created the account. One piece of information that was
automatically collected was the "Registration IP Address," which
was the Internet Protocol ("IP") address from which the account was
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created.1 Yahoo! also automatically recorded the date and time at
which the account was created. Yahoo! recorded this information in
an "Account Management Tool," which it maintained for the life of
a Yahoo! account. Further, whenever a user logged into a Yahoo!
account, Yahoo! automatically recorded the date and time of the
login as well as the IP address from which the login occurred.
Yahoo! stored this information in a "Login Tracker." The record
indicates that, during the relevant time period, Yahoo! kept login
records in its Login Tracker for sixty days.
During the same time period, Google, Inc. ("Google")
provided a service (also since discontinued) called "Google Hello."
Google Hello allowed users to sign in with a username and then chat
and trade photos with other users over the Internet. Google
automatically maintained records indicating the times at which a
user logged into and out of Google Hello, as well as the IP address
from which the user accessed the service ("Google Hello Connection
Logs").
At the relevant time, businesses such as Google and
Yahoo! had (and still have to this day) a duty to report any
apparent violation of federal child pornography laws to the
National Center for Missing and Exploited Children ("NCMEC"). See
1
"An IP address is the unique address assigned to every machine
on the internet. An IP address consists of four numbers separated
by dots, e.g., 166.132.78.215." United States v. Kearney, 672 F.3d
81, 84 n.1 (1st Cir. 2012) (quoting United States v.
Vázquez-Rivera, 665 F.3d 351, 354 n.5 (1st Cir. 2011)).
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42 U.S.C. § 13032(b)(1) (1998) (creating a reporting duty for any
entity "engaged in providing an electronic communication service or
a remote computing service to the public, through a facility or
means of interstate or foreign commerce") (current version at 18
U.S.C. § 2258A(a)(1) (2012)). NCMEC is a non-profit organization
that receives an annual grant from Congress to perform various
functions related to preventing the exploitation of children. See
42 U.S.C. § 5773(b) (2012). Among these functions is the operation
of a "cyber tipline to provide . . . electronic service providers
an effective means of reporting" child pornography and other
Internet-related crimes targeting children. Id. § 5773(b)(1)(P).
NCMEC's "cyber tipline" is called the "CyberTipline." Once NCMEC
receives a report of a possible child pornography crime via the
CyberTipline, it determines "the appropriate international,
Federal, State or local law enforcement agency for investigation"
and forwards the report to that agency. Id.
B. Yahoo! Reports to NCMEC
On March 15, 2007, Yahoo! received an anonymous report
that child pornography images were contained in a Yahoo! Photo
account belonging to a user with the username "lilhottyohh." The
record does not indicate that Yahoo! knew, or ever attempted to
find out, who made the anonymous report. In response to the
anonymous tip, Yahoo! personnel searched the "lilhottyohh" account
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and discovered images that they believed to be child pornography.
It is not known which Yahoo! employee conducted the search.
Yahoo! had an established process for dealing with
reports of child pornography. If Yahoo! learned of child
pornography in an account, an employee in Yahoo!'s Customer Care
Department temporarily removed the content from public view and
reviewed it. If he or she determined that the account contained
child pornography, Yahoo! deactivated the account and notified the
Legal Department. Meanwhile, the Customer Care Department created
an archive of all the images associated with the account, including
the date and time each image was uploaded and the IP address from
which it was uploaded. If the Legal Department agreed that any
images were child pornography, it then sent an electronic report to
NCMEC via the CyberTipline. Each report ("Yahoo! CP Report" or "CP
Report") listed a "Suspect Screen Name," a "Suspect Email Address,"
a "Suspect URL,"2 and a "Suspect IP Address." The "Suspect IP
Address" was the IP address that Yahoo! "associated" with the user;
it is not clear from the record whether this IP address was the
"Registration IP Address" stored in the Account Management Tool, or
2
For the purposes of this case, we understand a Uniform Resource
Locator ("URL") to be the string of characters that specifies the
location of a document on the Internet. For example, the URL for
the First Circuit's website (at the time of this writing) is
"http://www.ca1.uscourts.gov". URLs are distinct from IP
addresses. An IP address identifies a particular computer on the
Internet, but that computer might host multiple documents, each of
which might have their own URL.
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if it was some other IP address. One could argue, as the
government seemed to do at trial, that it is the IP address from
which the last image was uploaded onto the account, as in some CP
Reports the "Suspect IP Address" is different from the
"Registration IP Address" contained in the Account Management Tool
for the same account. The "Suspect Email Address" was the Yahoo!
email address of the Yahoo! user the CP Report pertained to, and
the "Suspect URL" was the Internet location where the user's photos
could be found.
Each CP Report also included a table listing the child
pornography images being sent with the report. Yahoo! attached to
each report the suspected child pornography images. For each child
pornography image, Yahoo! listed the date and time at which the
image was uploaded and the IP address from which it was uploaded
("Image Upload Data"). In addition, Yahoo attached data from the
Account Management Tool and Login Tracker to each CP Report.
Whenever Yahoo! sent a CP Report to NCMEC, Yahoo! automatically
stored a receipt. The receipt included a unique number assigned to
the report by NCMEC and a record of what Yahoo! reported to NCMEC,
including the attachments to the CP Report.
In this case, Yahoo! sent a CP Report of the child
pornography in the "lilhottyohh" account to NCMEC. Subsequently,
Yahoo! sent additional CP Reports to NCMEC of child pornography
found in the accounts of the users "lilhottee0000" and
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"harddude0000." All three CP Reports listed the same "Suspect IP
Address": 76.179.26.185.
C. ICAC Seizes Cameron's Computers
On August 3, 2007, NCMEC sent a report ("CyberTipline
Report") of child pornography found in the "lilhottee00000" Yahoo!
account to the Maine State Police Internet Crimes Against Children
("ICAC") unit. NCMEC later sent another CyberTipline Report to
ICAC, this time regarding child pornography found in the Yahoo!
Photo account of user "harddude0000." Both CyberTipline Reports
listed the same IP Address, 76.179.26.185, in the "Suspect
Information" section. Each report also noted that "[t]he IP
included in this report is the most recent file or image upload IP
available," and then listed the date and time of the most recent
upload.3
ICAC detective Laurie Northrup ("Northrup") determined
that the IP address 76.179.26.185 was part of a pool of IP
addresses that Time Warner, an Internet Service Provider ("ISP"),
distributed to its Internet access customers. Through a subpoena
to Time Warner, Northrup determined that the IP address
3
Moreover, the IP Address contained in each of the CyberTipline
Reports matched the "Suspect IP Address" contained in its
corresponding Yahoo! CP Report, although we do not know whether
this is by pure coincidence or if both IP Addresses really refer to
the computer that originated the most recent image upload. As we
mentioned earlier, the Yahoo! CP Reports did not state whether the
"Suspect IP Address" contained therein was the one from which the
most recent image had been uploaded, a representation which was in
fact made by in the CyberTipline Reports.
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76.179.26.185 had been assigned to the Cameron residence in
Hallowell, Maine during the relevant time periods. On December 21,
2007, Maine police executed a search warrant at the Cameron
residence. Officers found four computers at the residence: a
Compaq desktop, a Dell laptop, an HP desktop with an external hard
drive, and an eMachines desktop with an external hard drive. ICAC
also executed a search warrant at Cameron's workplace and seized
his office computer. ICAC's preliminary examination of the
computers in Cameron's home (conducted on site) indicated possible
child pornography on the HP desktop. This examination also
indicated that certain Yahoo! accounts had been accessed from the
eMachines computer. Northrup later requested information from
NCMEC related to these accounts.
In March of 2008, forensic examiner Scott Bradeen
("Bradeen") examined Cameron's five computers and external hard
drives. For each computer, Bradeen determined the IP addresses
from which the computer had accessed the Internet. Bradeen found
evidence that someone had accessed seventeen different Yahoo!
accounts, including those that were the subject of the reports that
NCMEC originally sent to ICAC, from various computers in Cameron's
home. In addition, Bradeen found child pornography images and
transcripts indicating that someone using Cameron's computers had
signed into Google Hello using one or more usernames to send and
receive child pornography images. Bradeen found child pornography
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images on Cameron's Dell laptop and on his HP desktop. Bradeen
found no child pornography on the Compaq desktop or on the
eMachines desktop. However, the Internet history stored on the
eMachines desktop showed that someone had executed Internet
searches for terms related to child pornography.
D. ICAC Search Warrants to Yahoo! and Google
ICAC subsequently served search warrants on Yahoo! for
information about the Yahoo! accounts that had been accessed from
Cameron's computers. The data produced by Yahoo! in response to
the search warrants included emails that had been sent to and from
those accounts. The emails indicated that on at least one
occasion, someone using the "harddude0000" Yahoo! account sent
child pornography to another individual via email and received
child pornography via email in response. Yahoo! also produced the
receipts of its Yahoo! Reports to NCMEC, the "Account Management
Tool," and the "Login Tracker" for each account; however, it is not
clear if Yahoo! produced the Image Upload Data. In addition,
Yahoo! produced disks containing images of child pornography found
in the accounts in question.
ICAC also served search warrants on Google for
information regarding the Google Hello accounts accessed from
Cameron's computers. In response, Google provided the Google Hello
Connection Logs for the specified user accounts.
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E. Indictment and Pre-Trial Proceedings
On February 11, 2009, a federal grand jury indicted
Cameron on sixteen counts of child pornography-related crimes. The
counts included ten counts of knowingly transporting child
pornography in violation of 18 U.S.C. §§ 2252A(a)(1) and
2256(8)(A); four counts of knowingly receiving child pornography in
violation of 18 U.S.C. §§ 2252A(a)(2) and 2256(8)(A); and two
counts of knowingly possessing child pornography in violation of 18
U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A). Each of the counts
recited a specific date on which Cameron allegedly transported,
received, or possessed child pornography. Of the ten counts of
transporting child pornography, seven alleged the uploading of
child pornography images to Yahoo! Photo accounts; two alleged the
sending of child pornography via Google Hello; and one alleged both
the uploading of child pornography to Yahoo! Photos and the sending
of child pornography via Google Hello. Of the four counts of
receiving child pornography, three alleged that Cameron had
received child pornography via Google Hello, and one alleged that
Cameron had received child pornography via a Yahoo! email account.
All of the transportation counts alleging uploads to Yahoo! Photo
specified the Yahoo! usernames Cameron allegedly used. The
indictment further alleged that all of the crimes charged occurred
in the District of Maine.
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Cameron filed three motions prior to trial that are
relevant to this appeal. First, on May 18, 2009, Cameron moved to
dismiss all counts of the indictment. See Cameron I, 662 F. Supp.
2d at 179. Cameron made a host of arguments, two of which demand
our attention here. The first was that all counts of the
indictment should be dismissed for insufficient pleading.
Specifically, Cameron argued that dismissal was warranted because
the indictment did not specify the images that were alleged to be
child pornography. Id. at 180. The district court rejected this
argument, holding that the indictment satisfied the First Circuit's
specificity requirement because each count of the indictment
tracked the statutory language and set forth the elements of the
offense. Id. at 181 (citing United States v. Sepúlveda, 15 F.3d
1161, 1192 (1st Cir. 1993); United States v. Serino, 835 F.2d 924,
929 (1st Cir. 1987)). Cameron also argued that venue in Maine was
improper for three counts because he was not in Maine on the dates
of the alleged offenses. Id. at 182-183. The court found that
venue was proper because the indictment alleged that the child
pornography images on which those counts were based had moved into
Maine at some point. Id. at 183. See also 18 U.S.C. § 3237(a)
(venue is proper in any district where the offense was started,
continued, or completed).
Second, on July 2, 2010, Cameron moved to suppress all
evidence resulting from Yahoo!'s searches for child pornography in
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Yahoo! Photo accounts that occurred before Yahoo! received search
warrants from ICAC. See Cameron II, 729 F. Supp. 2d at 419.
Cameron contended that Yahoo! acted as an agent of the government
when it searched password-protected accounts for child pornography
before reporting to NCMEC. Therefore, Cameron argued, the searches
violated his Fourth Amendment rights. Furthermore, Cameron
contended that because these allegedly illegal searches were the
basis of Yahoo!'s CP Reports to NCMEC, and because NCMEC's
resulting CyberTipline Reports to ICAC started the government's
investigation, all evidence seized by ICAC should be suppressed as
well.
The district court rejected Cameron's argument because it
found that Yahoo! had not acted as a government agent. See id. at
422-23. Relying on this court's three-part test from United States
v. Silva, 554 F.3d 13, 18 (1st Cir. 2009), to be discussed further
infra, the district court held that because Yahoo! voluntarily
searched the accounts for its own interests and without direction
by the government, it did not act as a government agent. Cameron
II, 729 F. Supp. 2d at 423-24. The court noted that in a similar
case, the Fourth Circuit held that an online email provider did not
act as a government agent when it searched the defendant's emails
for child pornography and reported it to NCMEC. Id. (citing United
States v. Richardson, 607 F.3d 357, 363-67 (4th Cir. 2010)).
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Finally, also on July 2, 2010, Cameron filed a motion in
limine to exclude all images and other material provided by Yahoo!,
Google, and NCMEC. Cameron III, 733 F. Supp. 2d at 183. The
government had indicated that it did not intend to call as
witnesses the original authors of the Yahoo! Reports to NCMEC,
NCMEC's CyberTipline Reports to ICAC, or the Yahoo! records that
were attached to the Yahoo! Reports (and then forwarded to ICAC
with the CyberTipline Reports) or produced in response to search
warrants. Based on this absence of witnesses, Cameron argued that
the introduction of this evidence would violate his rights under
the Confrontation Clause of the Sixth Amendment. Id. at 185.4
The district court denied Cameron's motion without
prejudice. The court noted that the Confrontation Clause was
implicated only if the prosecution sought to introduce
"testimonial" statements without making the declarant available for
cross-examination. Id. at 186 (citing United States v. Figueroa-
Cartagena, 612 F.3d 69, 84 (1st Cir. 2010)). However, in Crawford
v. Washington, the Supreme Court suggested that "business records"
were not considered "testimonial." 541 U.S. 36, 56 (2004). Thus,
the court considered whether the records in question could be
admitted as "business records" under Fed. R. Evid. 803(6). The
4
The government made a similar representation with respect to the
Google records, and Cameron raised a similar challenge. Because
Cameron's argument regarding the Google records was identical to
his argument for the Yahoo! records, the district court focused its
discussion on the Yahoo! records. See id. at 185 n.3.
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court held that as long as the government could successfully
authenticate the Yahoo! records and establish that they were kept
in the ordinary course of business, they would be admissible as
business records, and, therefore, the Confrontation Clause would
not be implicated. Cameron III, 733 F. Supp. 2d at 188-89. The
court also ruled that the NCMEC reports and attached images were
admissible as business records because NCMEC simply forwarded
information it received from Yahoo!, information which itself
consisted of business records. Id. at 189.
F. Trial
Cameron requested a bench trial, which began on August
16, 2010. The government voluntarily dismissed one of the two
possession counts before trial. At trial, the government
introduced evidence from Yahoo! via the testimony of Christian Lee
("Lee"), a Yahoo! employee. Lee was a Legal Assistant in Yahoo!'s
Legal Compliance Department who had no technical training, but who
testified that he was knowledgeable about Yahoo!'s data retention
and legal procedures. Lee testified about the information that
Yahoo! kept about its users. See Part I.A. In particular, Lee
stated that Yahoo! automatically recorded the data in the Account
Management Tool and the Login Tracker in the regular course of its
business in order to "provide reliable and accurate data about its
customer accounts." Lee also testified that, as part of its
ordinary business practice, Yahoo! automatically stored a receipt
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of each CP Report it sent to NCMEC, as well as the attachments,
including the Image Upload Data.
Moreover, despite Cameron's objection, the government
introduced the Account Management Tool data, the Login Tracker
data, and the receipts of Yahoo's CP Reports to NCMEC. The
government also introduced compact discs containing the child
pornography found in various accounts and other data, including
emails, produced in response to the search warrants. However, it
does not appear from the record that the government introduced the
Image Upload Data (or that the government even had this data).5
The government introduced the Google Hello Connection
Logs through the testimony of Google employee Colin Bogart
("Bogart"). Bogart was an employee in Google's Legal Compliance
Department and, like Lee, had no technical training. Bogart
testified that he retrieved the Google Hello Connection Logs by
using an internal Google program that allowed him to enter a
username and retrieve the Logs for that username. Bogart testified
that Google recorded this login information automatically and that
it relied on this information for its regular business activities.
5
The information contained in the Image Upload Data, which
reflected the date and time each child pornography image was
uploaded onto the internet, was central to the government's
case-in-chief, as it was the only evidence it could have relied on
to prove that Cameron uploaded those images on the specific dates
and times alleged in the indictment. The only other piece of
evidence that partially contained this information was the NCMEC
CyberTipline Reports.
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The government introduced the NCMEC CyberTipline Reports
through the testimony of John Shehan ("Shehan"), the executive
director of NCMEC. Shehan testified that once a report is received
through the CyberTipline, NCMEC's staff reviews the suspected
images and conducts an online search regarding the provided suspect
information. According to him, this query is aimed at identifying
the appropriate law enforcement agency with jurisdiction to
investigate the suspected child pornography activity. Although
NCMEC does not alter the information it receives via the
CyberTipline in any way -- other than to record a unique "report
ID" and an "entry date," -- Shehan noted that sometimes NCMEC
employees would annotate the CyberTipline Reports with their own
analysis regarding the information contained therein.6
In the instant case, each time a NCMEC employee finished
processing the information contained in a Yahoo! CP Report, he or
she would create a CyberTipline Report and forward it to the
appropriate law enforcement agency, here the ICAC Unit belonging to
the Maine State Police. As we briefly described earlier, the
CyberTipline Reports received by ICAC contained several sections,
among them a "Reporting Person Information" section which reflected
Yahoo!'s contact information, as well as a "Suspect Information"
section, which provided the user name, e-mail and IP Address of the
6
The record reflects that these analyses were apparently blocked
out, redacted or deleted from the CyberTipline Reports that the
government introduced into evidence at trial.
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account associated with the images. According to the reports
themselves, the IP Address was that of the computer that originated
the most recent image file upload. It is unclear exactly how NCMEC
extracted this IP Address or how it determined the date and time of
the last image upload, information which also appeared on the
reports. The only logical conclusion we can draw from the record
is that someone at NCMEC analyzed the Image Upload Data attached to
the Yahoo! CP Reports and selected the IP address from which the
most recent image had been uploaded, along with the date and time
of the upload, and included this information in the CyberTipline
Report. As we will see later on, this is of particular import to
Cameron's argument that the admission of these reports violated his
rights under the Confrontation Clause.
Armed with these CyberTipline Reports, ICAC detectives
were eventually able to obtain several search warrants against
Cameron's home and office. The government introduced evidence
regarding what ICAC found through these searches via the testimony
of Bradeen and Northrup. Bradeen testified about the child
pornography he found on Cameron's computers and about the evidence
he found showing that various Yahoo! and Google Hello accounts had
been accessed from those computers. Bradeen also testified about
the IP addresses from which Cameron's computers had accessed the
Internet. Some of these IP addresses matched the IP addresses
included in the CyberTipline Reports that NCMEC had created for the
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different Yahoo! accounts. For example, there was evidence that
all four computers seized at Cameron's home had accessed the
Internet at some point through IP address 76.179.26.185, which was
the IP address listed on CyberTipline Reports for "lilhottee00000"
and "harddude0000." Bradeen also testified that Cameron's HP
desktop had accessed the Internet through IP address 24.198.90.108,
which the Google Hello evidence showed was an IP address from which
a Google Hello user had logged in to trade child pornography.
Additionally, the government introduced evidence showing
that, on the specific dates of the transportation and receipt
crimes charged in the indictment, Cameron's computers had been
assigned the IP addresses from which those crimes had been
committed. For example, through a witness from Time Warner,
Cameron's ISP, the government introduced records showing that the
Time Warner account for Cameron's residence had been assigned
certain IP addresses on certain dates. To show that child
pornography had actually been uploaded on the dates alleged in the
indictment, and to show that it had been uploaded from the IP
address that Cameron had on those dates, the government relied on
the CyberTipline Reports; it does not appear from the record that
the government introduced the Image Upload Data into evidence (or
even that it had this information in the first place). The
government also introduced extensive evidence to show that no one
else living in Cameron's household at the time (Cameron lived with
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his wife and two minor children) could have committed the offenses
in the indictment.
To show that the images alleged to be child pornography
did in fact depict minors, the government relied on the testimony
of Dr. Lawrence Ricci ("Ricci"), a physician and child abuse
expert. Ricci analyzed the images by determining into which
"Tanner Stage" the persons depicted in the images fell. There are
five "Tanner Stages" of "secondary sexual development," the first
being Stage I, at which there is no evidence of such development.
Ricci analyzed the images recovered from Cameron's computers "very
conservatively" and identified as minors only those persons whom he
considered to be at Stage I, even though children generally reach
Stage II between the ages of ten and fourteen.
G. Conviction and Sentencing
Following the bench trial, the district court found
Cameron guilty of eight counts of transporting child pornography,
four counts of receiving child pornography, and one count of
possessing child pornography. The court found Cameron not guilty
on two of the transportation counts -- one related to the uploading
of photos to Yahoo! Photo and one relating to the sending of photos
over Google Hello -- because the court could not conclusively find
that the persons in the images connected to those counts were
minors. Cameron filed a motion for new trial, in which he renewed
his Confrontation Clause arguments, but the district court rejected
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that motion. See United States v. Cameron (Cameron IV), 762 F.
Supp. 2d 152, 159-60, 165 (D. Me. 2011).
The court sentenced Cameron to 192 months in prison,
followed by ten years of supervised release. The sentence was
based in part on the court's calculation that Cameron's offenses
involved "at least 300, but fewer than 600" images of child
pornography, which triggered a sentence enhancement under the
United States Sentencing Guidelines ("Guidelines"). See U.S.S.G.
§ 2G2.2(b)(7)(C) (2012).
Cameron now appeals his conviction and sentence.
II. Discussion
On appeal, Cameron again raises many of the challenges he
made in his pre-trial motions. First, he argues that the district
court erred in not dismissing all counts of the indictment for lack
of specificity. Second, he argues that the District of Maine was
not the proper venue for two of the counts of conviction. Third,
he argues that the district court erred in failing to suppress all
evidence derived from Yahoo!'s allegedly illegal search of
password-protected Yahoo! accounts. Fourth, he argues that the
admission of evidence from Yahoo!, Google, and NCMEC violated his
Confrontation Clause rights. Finally, he argues that his sentence
was erroneous because the district court erred in finding that at
least 300 images were involved. We address Cameron's arguments in
turn.
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A. Sufficiency of the Indictment
Cameron argues that the indictment is insufficient
because it fails to identify the specific images that each offense
was based on. Federal Rule of Criminal Procedure 7(c)(1) states
that an indictment "must be a plain, concise, and definite written
statement of the essential facts constituting the offense charged."
Fed. R. Crim. P. 7(c)(1). "When grading an indictment's
sufficiency, we look to see whether the document sketches out the
elements of the crime and the nature of the charge so that the
defendant can prepare a defense and plead double jeopardy in any
future prosecution for the same offense." United States v.
Guerrier, 669 F.3d 1, 3 (1st Cir. 2011). The sufficiency of an
indictment is a question of law which we review de novo. Id.(describing question of sufficiency as a "legal issue" to which de
novo review applies).
We conclude that the indictment was sufficient. As the
district court correctly noted, each count of the indictment
included the following information: a description of the offense
that tracks the language of the relevant statute, the date of the
offense, the type of child pornography involved (digital images),
and the means by which Cameron either transported (for example, by
uploading to a specified Yahoo! Photos album), received, or
possessed the child pornography in question. See Cameron I, 662 F.
Supp. 2d at 180-81. Cameron's argument that the indictment is
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insufficient because it failed to identify the specific images that
each offense was based on is unavailing. As the district court
correctly noted, neither the statutes under which Cameron was
charged nor Rule 7(c)(1) itself requires such specificity. See id.
at 180. Thus, we agree with the district court that the indictment
in this case satisfies Fed. R. Crim. P. 7(c)(1)'s requirements.
B. Venue
Cameron argues that venue in Maine was improper for
Counts Twelve and Thirteen of the indictment because he was in New
York on the dates alleged. Counts Twelve and Thirteen alleged that
on August 11, 2007, Cameron transported and received child
pornography, respectively, using Google Hello. Cameron argues that
since he and his computer were physically located in New York,
venue was only proper in New York.
"The right to be tried in the appropriate venue is one of
the constitutional protections provided to defendants by the Sixth
Amendment." United States v. Scott, 270 F.3d 30, 34 (1st Cir.
2001). As such, "[t]he burden of showing proper venue is on the
government, which must do so by a preponderance of the evidence."
Id. However, "[w]e review the evidence on venue in the light most
favorable to the government." Id. at 35. We review legal
conclusions de novo. Id. at 34.
Under 18 U.S.C. § 3237(a) (2012), a crime involving
interstate commerce can be "prosecuted in any district from,
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through, or into which such commerce, mail matter, or imported
object or person moves." Transporting and receiving child
pornography via Internet services such as Google Hello are both
crimes involving interstate commerce. See id. § 2252A(a)(1)
(making it illegal to "transport[]" child pornography "using any
means or facility of interstate or foreign commerce or in or
affecting interstate or foreign commerce by any means, including by
computer"); id. § 2252A(a)(2)(A) (making it illegal to receive "any
child pornography that has been mailed, or using any means or
facility of interstate or foreign commerce shipped or transported
in or affecting interstate or foreign commerce by any means,
including by computer"). In addition, the district court found
from the evidence at trial that the child pornography images
Cameron sent and received while in New York were stored on
Cameron's Dell Laptop, which he later brought back to Maine. Thus,
because the objects of Cameron's commerce moved into the District
of Maine, venue there was proper.
We further note that finding venue in Maine is consistent
with the purpose of the Constitution's venue protection, which is
to "ensure[] that a criminal defendant cannot be tried in a
distant, remote, or unfriendly forum solely at the prosecutor's
whim." United States v. Salinas, 373 F.3d 161, 164 (1st Cir.
2004). Since Cameron lives in Maine, the District of Maine cannot
-24-
be "distant" or "remote" for him, and there is no evidence that the
District Court was an "unfriendly" forum.
C. Motion to Suppress
Cameron argues that the district court erred in denying
his motion to suppress evidence. He posits that Yahoo!'s search
for child pornography in password-protected accounts violated the
Fourth Amendment because Yahoo! acted as an agent of the
government. Cameron further contends that, because the Yahoo! CP
Reports to NCMEC were the result of Yahoo!'s search, and because
NCMEC sent CyberTipline Reports to ICAC after receiving Yahoo!'s
reports, all subsequent searches executed by ICAC at Cameron's home
or executed via search warrants served on Yahoo! and Google derived
from Yahoo!'s original illegal searches. Thus, Cameron argues, all
evidence obtained as a result of searches conducted during ICAC's
investigation should have been suppressed.
In reviewing the denial of a motion to suppress evidence,
this court reviews the facts "in the light most favorable to the
district court's ruling," and will review any "findings of fact and
credibility determinations for clear error." United States v.
Camacho, 661 F.3d 718, 723 (1st Cir. 2011) (internal quotation
marks and citation omitted). "'A clear error exists only if, after
considering all the evidence, we are left with a definite and firm
conviction that a mistake has been made.'" Id. (quoting United
States v. McCarthy, 77 F.3d 522, 529 (1st Cir. 1996)). "[W]e will
-25-
uphold a denial of a motion to suppress if any reasonable view of
the evidence supports it." Id. (internal quotation marks and
citation omitted). However, "[w]e review de novo the district
court's conclusions of law, including its application of the law to
the facts." Id. at 724. "The appellant bears the burden of
showing a violation of his Fourth Amendment rights." Id.
The Fourth Amendment states that the "right of the people
to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated." U.S.
Const. amend. IV. "The Supreme Court has consistently construed
the Fourth Amendment protection as limiting only governmental
action." United States v. Momoh, 427 F.3d 137, 140 (1st Cir. 2005)
(internal quotation marks and citation omitted). The Fourth
Amendment does not apply "to a search or seizure, even an
unreasonable one, effected by a private individual not acting as an
agent of the Government or with the participation or knowledge of
any governmental official." United States v. Jacobsen, 466 U.S.
109, 113 (1984) (emphasis added) (internal quotation marks and
citation omitted).
A private search only implicates the Fourth Amendment if
the private party acts as a "government agent." Silva, 554 F.3d at
18. In Silva, we established that in determining whether a private
party has acted as a government agent, courts must consider three
factors: (1) "the extent of the government's role in instigating or
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participating in the search"; (2) "[the government's] intent and
the degree of control it exercises over the search and the private
party"; and (3) "the extent to which the private party aims
primarily to help the government or to serve its own interests."
Id. (internal quotation marks and citation omitted). We will not
find that a private party has acted as an agent of the government
"simply because the government has a stake in the outcome of a
search." Id.Here, as to the first Silva factor, there is no evidence
that the government had any role in instigating or participating in
the search. Yahoo! began searching Cameron's accounts after it
received an anonymous tip regarding child pornography in the Yahoo!
Photo album of user "lilhottyohh." There is no evidence that the
person who sent this tip to Yahoo! was a government employee.
Cameron contends that the Yahoo! employees who searched his
accounts likely had "strong connections to law enforcement."
However, this contention is rank speculation on Cameron's part,
with no support in the record.
As to the second Silva factor, there is no evidence that
the Government exercised any control over Yahoo! or over the
search. As discussed above, Yahoo! employees conducted the search
pursuant to Yahoo!'s own internal policy. Furthermore, there is no
evidence that the Government compelled Yahoo! in any way to
maintain such a policy. Cameron points to the fact that Yahoo had
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a duty under federal law to report child pornography to NCMEC in
August of 2007. See 42 U.S.C. § 13032(b)(1) (repealed 2008).
However, the statute did not impose any obligation to search for
child pornography, merely an obligation to report child pornography
of which Yahoo! became aware.
Finally, as to the third Silva factor, it is certainly
the case that combating child pornography is a government interest.
However, this does not mean that Yahoo! cannot voluntarily choose
to have the same interest. As discussed above, there is no
evidence that the government instigated the search, participated in
the search, or coerced Yahoo! to conduct the search. Thus, if
Yahoo! chose to implement a policy of searching for child
pornography, it presumably did so for its own interests. The
record does not reflect what Yahoo!'s interests might have been,
but it is Cameron's burden to show that Yahoo! did what it did to
further the government's interest, and he can point to no evidence
to carry this burden.
Having applied the Silva factors, we conclude that Yahoo!
was not acting as an agent of the government; therefore, its
searches of Cameron's accounts did not violate the Fourth
Amendment. Because there was no Fourth Amendment violation, there
was no reason to suppress any evidence that may have derived from
Yahoo!'s initial searches. For this reason, we hold that the
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district court properly denied Cameron's motion to suppress
evidence.
D. Confrontation Clause
Cameron next argues that the district court's admission
of evidence obtained from Yahoo!, Google, and NCMEC violated his
Confrontation Clause rights. Although Cameron's brief does not
make clear which specific records he believes should not have been
admitted, he does specify that he is not challenging the admission
of those child pornography images that Yahoo provided in response
to search warrants. We thus presume that Cameron's challenge is to
the following categories of evidence: (1) the Yahoo! Account
Management Tool and Login Tracker data -- this data was attached to
the CP Reports and was also produced in response to search
warrants; (2) electronic receipts of Yahoo's CP Reports to NCMEC --
these receipts were produced by Yahoo! in response to search
warrants; (3) NCMEC's CyberTipline Reports to ICAC; and (4) the
Google Hello Connection Logs.7
7
Cameron makes no coherent challenge to the admission of the
emails produced in response to the search warrants served on
Yahoo!. Cameron appears to lump these in with the other Yahoo!
records. However, as the district court recognized, the emails may
be in a legally distinct category from the other records, because
they could be viewed as statements attributable to Cameron
directly. See Cameron III, 733 F. Supp. 2d at 185 (noting
government's argument that "statements attributable to the
defendant in the Yahoo! records and emails are not hearsay because
a party's own statement is directly admissible against him")
(internal quotation marks and citation omitted). Cameron has not
explained to this court how any of his Confrontation Clause
arguments relate to the emails; for this reason, we deem any
-29-
We review de novo a district court's decision that the
admission of various exhibits did not violate the Confrontation
Clause. See United States v. Mitchell-Hunter, 663 F.3d 45, 49 (1st
Cir. 2011).
1. Confrontation Clause Principles
"The Sixth Amendment's Confrontation Clause confers upon
the accused in all criminal prosecutions . . . the right . . . to
be confronted with the witnesses against him." United States v.
Phoeun Lang, 672 F.3d 17, 21 (1st Cir. 2012) (quoting Bullcoming v.
New Mexico, 131 S. Ct. 2705, 2713 (2011)) (internal quotation marks
omitted). In Crawford, the Supreme Court held that the
Confrontation Clause bars the admission of "testimonial statements
of witnesses absent from trial," unless the witness is unavailable
to testify and the defendant had a prior opportunity for
cross-examination. 541 U.S. at 59. Two years later, in Davis v.
Washington, the Court held that Crawford's prohibition "applies
only to testimonial hearsay." Davis v. Washington, 547 U.S. 813,
823-24 (2006) (emphasis added).8 Thus, "the threshold question in
challenge to the emails waived. See Rodríguez v. Municipality of
San Juan, 659 F.3d 168, 175 (1st Cir. 2011) ("[W]e consider waived
arguments confusingly constructed and lacking in coherence . . .
Judges are not mind-readers, so parties must spell out their issues
clearly, highlighting the relevant facts and analyzing on-point
authority.") (internal quotation marks and citations omitted).
8
Hearsay is defined as a statement made out of court, by a
person, which is offered into evidence to prove the truth of the
matter asserted. Fed. R. Evid. 801(c); United States v. Benítez-
Ayala, 570 F.3d 364, 367 (2009).
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every case is whether the challenged statement is testimonial. If
it is not, the Confrontation Clause has 'no application.'"
Figueroa-Cartagena, 612 F.3d at 85 (quoting Whorton v. Bockting,
549 U.S. 406, 420 (2007)).
The Supreme Court has yet to supply a "comprehensive
definition of 'testimonial.'" Lang, 672 F.3d at 22 (quoting
Crawford, 541 U.S. at 822); see also Davis, 547 U.S. at 822(deciding narrow issues before the Court "[w]ithout attempting to
produce an exhaustive classification of all conceivable statements
. . . as either testimonial or nontestimonial"). The Court in
Crawford, however, provided an "illustrative list of the 'core
class of testimonial statements.'" Lang, 672 F.3d at 22 (quoting
Crawford, 541 U.S. at 51). This list included "statements that
were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use
at a later trial." Crawford, 541 U.S. at 52 (internal quotation
marks omitted). On the other hand, the Court also indicated that
certain types of statements "by their nature [are] not testimonial
-- for example, business records or statements in furtherance of a
conspiracy," and therefore do not implicate the Confrontation
Clause. Crawford, 541 U.S. at 56.
Relying on Crawford, we have held in a number of cases
that business records -- or their close counterpart, public records
of non-law enforcement government agencies -- are admissible absent
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confrontation. See, e.g., Lang, 672 F.3d at 22-23 (holding that an
immigration document was not testimonial because an objectively
reasonable person would not have understood the form to be used in
prosecuting the defendant at trial); United States v. De La Cruz,
514 F.3d 121, 133 (1st Cir. 2008) (concluding that autopsy report
was "in the nature of a business record" and thus admissible
without confrontation); United States v. García, 452 F.3d 36, 41-42
(1st Cir. 2006) (affirming admission of warrant of deportation in
defendant's immigration file).
However, although the Supreme Court seemed to indicate in
Crawford that business records are not testimonial "by their
nature," 541 U.S. at 56, the Court later indicated that this is not
necessarily the case for all business records. In Meléndez-Díaz v.
Massachusetts, the prosecutor sought to admit "certificates of
analysis" that showed that a substance found in the defendant's
possession was cocaine. 557 U.S. 305, 308 (2009). The
certificates were sworn to by analysts at a state laboratory. Id.The trial court allowed the certificates, even though the forensic
analysts who tested the substance did not testify. Id. at 309.
The Supreme Court ruled that the admission of these certificates
violated the Confrontation Clause because they fell into the "'core
class of testimonial statements'" identified in Crawford.
Meléndez-Díaz, 557 U.S. at 310 (quoting Crawford, 541 U.S. at 51).
The Court found that the certificates were effectively affidavits,
-32-
and that they had clearly been "'made under circumstances which
would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.'" Id.(quoting Crawford, 541 U.S. at 52).
In finding that the admission of the certificates
violated the Confrontation Clause, the majority rejected the
argument that the certificates could be admitted as business
records. Although the majority found that the certificates "[did]
not qualify as business records," they held that even if the
certificates were business records, "their authors would be subject
to confrontation nonetheless." Id. at 321. The majority observed
that although "[d]ocuments kept in the regular course of business
may ordinarily be admitted at trial despite their hearsay status,"
this would not be so "if the regularly conducted business activity
is the production of evidence for use at trial." Id. at 321
(emphasis added). As the majority explained, "[b]usiness and
public records are generally admissible absent confrontation not
because they qualify under an exception to the hearsay rules, but
because -- having been created for the administration of an
entity's affairs and not for the purpose of establishing or proving
some fact at trial -- they are not testimonial." Id. at 324
(emphasis added). Thus, because the certificates at issue in
Meléndez-Díaz had been "prepared specifically for use at
petitioner's trial," the court held that "[w]hether or not they
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qualif[ied] as business records," they were inadmissible unless
their authors could be cross-examined. Id.; cf. Bullcoming, 131 S.
Ct. at 2720 ("'[D]ocuments kept in the regular course of business
may ordinarily be admitted at trial despite their hearsay status,'
except 'if the regularly conducted business activity is the
production of evidence for use at trial.' In that circumstance, the
hearsay rules bar admission of even business records.") (Sotomayor,
J., concurring) (internal citation omitted) (quoting Meléndez-Díaz,
557 U.S. at 321).
Returning to the facts of this case, even if the records
at issue here are business records, as the government argues, we
must still determine whether or not they are testimonial. See
United States v. Pursley, 577 F.3d 1204, 1223 (10th Cir. 2009),
cert. denied, ___ U.S. ___, 130 S. Ct. 1098 (2010) ("[E]ven if a
statement qualifies for an exception to the hearsay doctrine --
based upon judicially fashioned reliability principles -- the
statement's admission may violate the Sixth Amendment's mandate
for 'confrontation' if it constitutes 'testimonial' hearsay."
(citing Crawford, 541 U.S. at 61-62; Meléndez-Díaz, 129 S. Ct. at
2533)). "To rank as 'testimonial,' a statement must have a
'primary purpose' of 'establishing or proving past events
potentially relevant to later criminal prosecution.'" Bullcoming,
131 S. Ct. at 2714 n.6 (quoting Davis, 547 U.S. at 822). "In
identifying the primary purpose of an out-of-court statement, we
-34-
apply an objective test." Williams v. Illinois, 132 S. Ct. 2221,
2243 (2012) (plurality opinion).
With these principles in mind, we proceed to determine
whether the records Cameron challenges are testimonial in nature.
2. Yahoo! Account Management Tool, Yahoo! Login Tracker,
and Google Hello Connection Logs
It is clear that the admission of the Yahoo! Account
Management Tool data, the Yahoo! Login Tracker data, and the Google
Hello Connection Logs did not violate the Confrontation Clause.
Lee, the Yahoo! witness, testified that all of the data in the
Account Management Tool and the Login Tracker was data that Yahoo!
collected automatically in order to further its business purposes.
Bogart, the Google witness, testified in a similar fashion
regarding the Google Hello Connection Logs. Although "Crawford
analysis generally requires a court to consider two threshold
issues: (1) whether the out-of-court statement was hearsay, and (2)
whether the out-of-court statement was testimonial," United States
v. Earle, 488 F.3d 537, 542 (1st Cir. 2007), we dispense with the
first issue because, even assuming arguendo that the documents in
question contain hearsay statements, the same are in no way
testimonial. As the government argues, these documents squarely
conform to the requirements outlined by the Federal Rules of
Evidence for business records: (1) they were made at or near the
time of the event; (2) kept in the regular course of business; and
(3) created in the regular course of business. See Fed. R. Evid.
-35-
803(6).9 Thus, we agree with the government that the Account
Management Tools and the Login tracker were business records of
Yahoo!, and the Google Hello Connection Logs were business records
of Google.10
9
Rule 803(6) provides that "[a] record of an act, event,
condition, opinion, or diagnosis" is admissible despite its hearsay
status if:
(A) the record was made at or near the time by -- or from
information transmitted by -- someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a business, organization,
occupation, or calling, whether or not for profit;
(C) making of the record was a regular practice of that
activity;
(D) all these conditions are shown by the testimony of
the custodian or another qualified witness . . .; and
(E) neither the source of information or the method or
circumstances of preparation indicate a lack of
trustworthiness.
10
Rule 803(6) also requires that the records be introduced through
the testimony of a "custodian or other qualified witness," and that
neither the "source of information nor the method or circumstances
of preparation" can "indicate a lack of trustworthiness." Cameron
protests that Lee and Bogart were not engineers, had no knowledge
of the technical details of Yahoo!'s or Google's systems,
respectively, and were not the ones who prepared the records.
However, when dealing with computerized records under Rule 803(6),
"it is not required that the qualified witness be a computer
programmer . . . or that she be the person who actually prepared
the record." United States v. Moore, 923 F.2d 910, 915 (1st Cir.
1991) (internal quotation marks and citation omitted). The rule
simply requires that the witness be "one who can explain and be
cross-examined concerning the manner in which the records are made
and kept," Wallace Motor Sales v. American Motors Sales Corp., 780
F.2d 1049, 1061 (1st Cir. 1985), and Lee and Bogart satisfied this
requirement. As for the trustworthiness of the records, we have
held that "the ordinary business circumstances described [by the
qualified witness] suggest trustworthiness at least where
absolutely nothing in the record in any way implies lack thereof."
Moore, 923 F.2d at 915 (internal citation omitted). Such is the
case here, since there is no evidence in the record that Yahoo!'s
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Moreover, it is clear that none of these records are the
type of "testimonial" business records that might cause
Confrontation Clause concerns under Meléndez-Díaz. Lee testified
that Yahoo! kept the Account Management Tool and Login Tracker data
in order to serve business functions that were totally unrelated to
any trial or law enforcement purpose: namely, to provide reliable
data about its customer accounts. Bogart provided similar
testimony regarding Google's need for the Google Hello Connection
Logs. Thus, applying an "objective test," Williams, 132 S. Ct. at
2243, we find that the "primary purpose" of collecting this data
was not to "establish[] or prov[e] past events potentially relevant
to later criminal prosecution." Bullcoming, 131 S. Ct. at 2714
n.6. We therefore conclude that the district court did not err in
admitting the Yahoo! Account Management Tool evidence, the Yahoo!
Login Tracker evidence, or the Google Hello Connection Logs
evidence.
3. Receipts of Yahoo! CP Reports
We are not convinced that the same can be said for the
receipts of the Yahoo! CP Reports. As Lee testified, Yahoo!
created CP Reports in the ordinary course of its business. Yahoo!
also kept receipts of those Reports, which were essentially copies
of the Reports, in the ordinary course of its business. Thus, in
analyzing whether the receipts of the CP Reports are testimonial,
or Google's data recording systems were flawed in any way.
-37-
we consider whether the CP Reports themselves -- of which the
receipts are simply computer-generated copies -- are (1) out-of-
court hearsay statements, and (2) whether these statements are
testimonial. Earle, 488 F.3d at 542.
In order to constitute hearsay, the CP Reports must be:
(1) statements made out of court, (2) by a person, and (3) offered
into evidence to prove the truth of the matter asserted. Fed. R.
Evid. 801(b) and (c). As to the first prong, we have no trouble
finding that the CP Reports are out-of-court statements, as they
are written assertions, made outside of the courtroom, containing
information on screen names that Yahoo! has associated with
potential child pornography. We also find that the second prong is
met as the CP Reports were made by a person, as Lee himself
testified that they were made by a person with knowledge of their
contents. According to Lee, someone at Yahoo!'s Legal Department
reviews an archive of the images featured in the suspect's account,
removes those that do not appear to contain child pornography, and
includes the rest in the CP Report addressed to NCMEC. Although
the receipts of the CP Reports in question do not appear to be
signed by any Yahoo! employee in particular, we believe it to be
evident from Lee's testimony that the CP Reports were authored by
an employee in the Legal Department. Lee himself testified that
part of his duties at Yahoo! included preparing these CP Reports.
Therefore, the CP Reports as a whole are statements made by a
-38-
person, who intended those statements to be taken as true, and
subsequently acted on, by NCMEC. As we will explain infra, this is
the case despite the fact that some of the information contained in
the CP Reports was generated automatically by Yahoo!'s different
retrieval tools.
Lastly, we conclude that the receipts of the CP Reports
were introduced at trial to prove the truth of at least some of the
matters asserted in them. The government sought to introduce this
evidence to establish a link between the "Suspect IP Address"
contained in the CP Reports and Cameron. The prosecution was
seemingly operating under the impression that this IP address was
the one from which the most recent image of child pornography had
been uploaded, even though, as previously explained, this
association is not readily apparent from the documents themselves.
Consequently, we can only infer that it was the government's intent
to use this evidence to link Cameron to the specific IP addresses
from which child pornography images were uploaded into the Yahoo!
accounts, and not just to support the proposition that said IP
addresses were the ones from which Cameron registered the accounts
at Yahoo!. To establish the latter, the government could have
simply relied on the Yahoo! Account Management Tool, the admission
of which we have just held did not implicate the Confrontation
Clause.
-39-
The district court apparently went along with this
characterization of the CP reports when it decided to admit their
receipts into evidence. In doing so, the court went through a
three-step logical sequence aimed at ultimately linking Cameron to
the IP addresses and the Yahoo! screen names used to upload the
images, just as the government had proposed. First, the district
court used the receipts of the CP Reports to link the Yahoo! screen
names to the IP addresses from which the suspect images were
uploaded. Second, the district court used the NCMEC CyberTipline
Reports to make the connection between these IP addresses and the
crime of uploading child pornography images, by examining the
images attached to these reports and making a preliminary finding
that they portrayed child pornography as defined in federal law.11
Lastly, the court found that the incriminating IP addresses were
linked to Cameron based on the evidence obtained from sources such
as "eBay", "PayPal" and the "Military Watch Forum" website, which
evinced that Cameron had used those same IP addresses to log in to
his personal accounts with those entities during the same time
periods that the uploads took place. From this we can soundly
conclude that the receipts of the Yahoo! CP Reports were introduced
as identifying evidence, designed to unveil Cameron as the person
responsible for uploading child pornography using the Yahoo! screen
11
It should be noted that the receipts of the Yahoo! CP Reports
introduced into evidence did not contain any actual images of child
pornography, unlike the NCMEC CyberTipline Reports, which did.
-40-
names featured in some of the counts of the indictment. Hence,
these receipts were introduced to prove the truth of the matter
asserted and as such constitute hearsay.
The next step in our inquiry calls upon us to determine
whether the receipts of the CP Reports are testimonial. We assume
that the CP Reports, and by extension the receipts, would count as
business records for the purposes of Federal Rule of Evidence
803(6). However, unlike the Yahoo! Account Management Tool, the
Login Tracker data and the Google Hello Connection Logs, there is
strong evidence that the CP Reports were prepared with the "primary
purpose of establishing or proving past events potentially relevant
to a later criminal prosecution." Bullcoming, 131 S. Ct. at 2714
n.6 (internal quotation marks and citation omitted). We also find
that the Reports are similar in purpose to the types of out-of-
court statements that the Supreme Court has described as
testimonial in recent Confrontation Clause cases. See Davis, 547
U.S. at 828-29 (statements to law enforcement in non-emergency
situation); Meléndez-Díaz, 557 U.S. at 321 (documents created in
the ordinary course of business but also for litigation purpose).
Thus, although the CP Reports may have been created in the ordinary
course of Yahoo!'s business, they were also testimonial; the
receipts of the Reports, therefore, should not have been admitted
without giving Cameron the opportunity to cross-examine the Yahoo!
employees who prepared the CP Reports.
-41-
We start by objectively viewing the evidence to determine
the "primary purpose" of the Reports. Firstly, we note that the CP
Reports refer to a "Suspect Screen Name," a "Suspect Email
Address," and a "Suspect IP Address." A "suspect" is "one who is
suspected; esp. one suspected of a crime or of being infected."
Webster's Third New International Dictionary 2303 (2002). There
was no testimony from Lee, nor any other evidence, that Yahoo!
treated its customers as "suspects" in the ordinary course of its
business. Indeed, the word "suspect" does not appear anywhere in
the Account Management Tool or Login Tracker data. Further, Lee
testified that in order for a CP Report to initially have been
created, someone in the Legal Department had to have determined
that an account contained what appeared to be child pornography
images.
Secondly, once Yahoo! created a CP Report, it did not
merely keep it in its own files; rather, it sent the report on to
NCMEC (and kept a receipt). Although NCMEC is not officially a
government entity, it receives a grant from the government, and one
of the uses to which NCMEC puts this grant money is to operate the
CyberTipline and forward reports of child pornography to law
enforcement. See 42 U.S.C. § 5773(b)(1)(P).
Given that Yahoo! created CP Reports referring to
"Suspect[s]" and sent them to an organization that is given a
government grant to forward any such reports to law enforcement, it
-42-
is clear that under the "objective test" required by Williams, 132
S. Ct. at 2243, the primary purpose of the CP Reports was to
"establish[] or prov[e] past events potentially relevant to later
criminal prosecution." Bullcoming, 131 S. Ct. at 2714 n.6
(internal quotation marks and citation omitted). The reports
clearly "established past events," in that each one reflected the
"event" of child pornography being placed into a Yahoo! user
account at some point in the past. These "events" were clearly
"relevant to later criminal prosecution": uploading child
pornography and possessing it on the Internet are crimes, and
evidence as to the IP address, and screen name of the suspect, is
clearly relevant to prosecuting those crimes. We also find that
the CP Reports were "made under circumstances which would lead an
objective witness reasonably to believe that the statement would be
available for use at a later trial." Crawford, 541 U.S. at 52(internal quotation marks and citation omitted). Lee testified
that it was Yahoo!'s standard practice to send CP Reports to NCMEC
and keep receipts of those Reports; thus, whoever generated the CP
Reports in this case presumably knew that the Reports would most
likely spark an investigation, and that as a result of such
investigation, the government might request the CP Reports (in the
form of the receipts) from Yahoo! for use as evidence.
Our conclusion is bolstered by a comparison of the CP
Reports at issue here with those statements the Supreme Court has
-43-
found to be testimonial or non-testimonial in recent Confrontation
Clause cases. For example, the CP Reports here are similar in many
ways to those statements that the Supreme Court found to be
testimonial in Davis. Davis concerned two consolidated cases. 547
U.S. at 817. In the first case, the former girlfriend of Adrian
Davis ("Davis") called 911 to report that Davis was assaulting her,
and narrated Davis's attack to the operator as it occurred. Id. at
817-18. At Davis's trial, the girlfriend did not testify, but the
court admitted the recording of the 911 call, and Davis was
convicted of violation of a domestic no-contact order. Id. at 818-
19. In the second case, the police responded to a domestic
disturbance at the home of Hershel Hammon ("Hammon"). Id. at 819.
The police separately questioned Hammon and his wife, the latter of
whom swore out an affidavit stating that Hammon had attacked her.
Id. at 820. Hammon's wife did not testify at his trial, but the
court introduced her affidavit, and Hammon was found guilty. Id.
at 820-21.
In Davis's case, the Court found that the recording was
not testimonial because the primary purpose of Davis's girlfriend's
statements to the 911 operator were "to enable police assistance to
meet an ongoing emergency." Id. at 828; see also id. at 827 ("A
911 call . . ., and at least the initial interrogation conducted in
connection with a 911 call, is ordinarily not designed primarily to
establish or prove some past fact, but to describe current
-44-
circumstances requiring police assistance.") (internal quotation
marks omitted). However, in Hammon's case, the Court found that
his wife's affidavit was testimonial, because "[i]t [was] entirely
clear from the circumstances that the interrogation was part of an
investigation into possibly criminal past conduct." Id. at 829.
Here, the CP Reports are more similar in purpose to
Hammon's wife's affidavit than to the recording of Davis's
girlfriend's 911 call. The CP Reports were clearly not intended
"to enable police assistance to meet an ongoing emergency" or to
"describe current circumstances requiring police assistance."
Davis, 547 U.S. at 827-28. While possession of child pornography
is a serious crime, and while discovering child pornography must
certainly have troubled Yahoo! and its employees, the presence of
child pornography in Cameron's accounts was certainly not an
"emergency" comparable to what Davis's girlfriend described to the
911 operator: an ongoing physical assault. Cf. Michigan v. Bryant,
131 S. Ct. 1143, 1166-67 (2011) (holding that statements by gunshot
victim to police identifying the shooter were not testimonial when
police had reason to believe that the shooter might still be armed
and in the area). Rather, the CP Reports were clearly intended to
lead to "an investigation into possibly criminal past conduct."
See Davis, 547 U.S. at 829. And although the Court in Davis found
it "unnecessary to consider whether and when statements made to
someone other than law enforcement personnel are 'testimonial,'"
-45-
Davis, 547 U.S. at 823 n.2, we find that in the context of this
case, NCMEC effectively acted as an agent of law enforcement,
because it received a government grant to accept reports of child
pornography and forward them along to law enforcement. Cf. id.("If 911 operators are not themselves law enforcement officers,
they may at least be agents of law enforcement when they conduct
interrogations of 911 callers. For the purposes of this opinion .
. . we consider their acts to be that of the police.").
We recognize that both cases in Davis involved
"interrogations," see id. at 822 n.1, and that the CP Reports here
did not result from any "interrogation" of Yahoo!. However, as
noted above, Yahoo! was obligated under federal law to report any
child pornography it became aware of to NCMEC. See 42 U.S.C.
§ 13032(b)(1) (current version at 18 U.S.C. § 2258A(a)(1)).
Moreover, the Court in Davis noted that although the decision
referred to "interrogations," "[t]his [was] not to imply ... that
statements made in the absence of any interrogation are necessarily
nontestimonial." Davis, 547 U.S. at 822 n.1. "The Framers," the
Court noted, "were no more willing to exempt from cross-examination
volunteered testimony or answers to open-ended questions than they
were to exempt answers to detailed interrogation." Id. (emphasis
added). The CP Reports at issue here, we conclude, fall somewhere
in the range between "volunteered testimony" and responses to an
interrogation, and we are confident that the Framers would not have
-46-
been willing to exempt testimonial statements in this range from
cross-examination.
The situation here is also similar to that in Palmer v.
Hoffman, 318 U.S. 109 (1943), which the Court in Meléndez-Díaz
cited as an example of a case where the "regularly conducted
business activity [was] the production of evidence for use at
trial." 557 U.S. at 321 (citing Palmer, 318 U.S. 109). Palmer
involved an accident at a railroad crossing in Massachusetts. 318
U.S. at 110. The train's engineer, who died before trial, gave a
statement about the accident to a railroad official and to a
representative of the Massachusetts Public Utilities Commission.
Id. at 111. The railroad sought to introduce the engineer's
statement under the Act of June 20, 1936, 49 Stat. 1561 (current
version, as amended, at 28 U.S.C. § 1732 (2012)), which allowed the
admission in federal court of any "memorandum or record of any act,
transaction, occurrence, or event" as long as such record "was made
in the regular course of any business." Palmer, 318 U.S. at 111,
111 n. 1. The Supreme Court held that the record was properly
excluded, noting that the statement was not "a record made for the
systematic conduct of the business as a business," but rather was
"calculated for use essentially in the court, not in the business."
Id. at 113, 114; see also Meléndez-Díaz, 557 U.S. at 321(explaining the holding of Palmer). Here, the fact that the CP
Reports were made pursuant to a standard Yahoo! business practice
-47-
does not mean they were made to advance Yahoo!'s core business
purpose, which is, as Lee testified, to offer Internet-based
services such as e-mail, search, and instant messaging. Just as
the "primary utility" of the report in Palmer was "in litigating,
not in railroading," 318 U.S. at 114, the primary utility of the CP
Reports here is in reporting crimes to law enforcement, not in
providing Internet-based services to Yahoo!'s customers.
Finally, we believe the CP Reports here are
distinguishable from the out-of-court statements that a plurality
of the Justices found to be non-testimonial in Williams, the
Supreme Court's most recent Confrontation Clause case. In
Williams, vaginal swabs from a sexual-assault kit were sent to
Cellmark Diagnostics Laboratory ("Cellmark"), which produced a DNA
profile from the semen found in the swabs. 132 S. Ct. at 2229(Alito, J., plurality opinion). At Williams's trial, the
prosecution called as a witness Sandra Lambatos ("Lambatos"), an
expert in biology and DNA analysis. Id. Lambatos testified that
the DNA profile produced by Cellmark matched the DNA profile of
Williams, which was already in a state database as a result of a
prior unrelated arrest. Id. Although the Cellmark report was not
admitted into evidence at all, the Williams plurality held that
"[e]ven if the Cellmark report had been introduced for its truth,
we would nevertheless conclude that there was no Confrontation
Clause violation." Id. at 2242.
-48-
Based on the circumstances of the case, the plurality
concluded that "the primary purpose" of the Cellmark report,
"viewed objectively, was not to accuse [Williams] or create
evidence for use at trial." Id. at 2243. The plurality noted that
when the state sent the kit to Cellmark, the state's "primary
purpose was to catch a dangerous rapist who was still at large, not
to obtain evidence for use against [Williams], who was neither in
custody nor under suspicion at the time." Id. The plurality also
noted that "no one at Cellmark could have possibly known that the
profile it produced would turn out to inculpate [Williams] -- or
for that matter, anyone else whose DNA profile was in a law
enforcement database." Id. at 2243-44. The plurality further
noted that in DNA labs, "the technicians who prepare a DNA profile
generally have no way of knowing whether it will turn out to be
incriminating or exonerating -- or both." Id. at 2244.
This last point is critical in distinguishing the
Cellmark reports in Williams from the Yahoo! CP Reports here.
Nobody at Yahoo! who was involved in creating the CP Reports could
possibly have believed that the CP Reports could be other than
"incriminating." Recall that (1) Yahoo! created these Reports
after its own employees had already concluded that a crime had been
committed, and (2) Yahoo! then sent these Reports to an
organization that forwards such reports to law enforcement.
Yahoo!'s employees may not have known whom a given CP Report might
-49-
incriminate, but they almost certainly were aware that a Report
would incriminate somebody.
The government contends that we should focus not on the
purpose for which the CP Reports were created, but rather on the
purpose for which the records underlying the CP Reports -- such as
the record of the user's IP address, and the associations between
images and accounts -- were created. Because these underlying
records were created for a Yahoo! core business purpose, the
government contends that under the "primary purpose" test, the CP
Reports are not testimonial. The government urges us to treat the
Yahoo! CP Reports like the immigration documents we held to be non-
testimonial in Lang, 672 F.3d at 22-23, or like the types of
business records that other Circuits have found to be non-
testimonial. See, e.g., United States v. Yeley-Davis, 632 F.3d
673, 677-81 (10th Cir. 2011) (holding that neither cell phone
records nor their authenticating documents were testimonial);
United States v. Ali, 616 F.3d 745, 751-52 (8th Cir. 2010) (holding
that bank records regarding taxpayer refund anticipation checks
were not testimonial).
However, the government's argument ignores a critical
point: as explained earlier, the CP Reports are themselves
"statements," and thus their purpose must be analyzed
independently. It is not enough to analyze the purpose behind the
creation of the business records on which the CP Reports rely. If
-50-
the CP Reports simply consisted of the raw underlying records, or
perhaps underlying records arranged and formatted in a readable way
for presentation purposes, the Reports might well have been
admissible. See Lang, 627 F.3d at 22-23; Yeley-Davis, 632 F.3d at
677. Indeed, we have upheld the admission of the Account
Management Tool and Login Tracker printouts because those exhibits
simply take pre-existing records (records such as the IP addresses
from which an account was created and accessed) and put them on
paper in a readable format. But the CP Reports are a different
animal, for they do not merely present pre-existing data; instead,
they convey an analysis that was performed using pre-existing data.
From our earlier discussion, recall that the CP Reports
and Lee's testimony clearly indicated that, to create each Report,
someone at Yahoo! analyzed Yahoo!'s data, drew conclusions from
that data, and then made an entirely new statement reflecting those
conclusions. Each report also refers to a "Suspect" who is
identified by his "Screen Name," "Email Address," "IP Address," and
"URL." This means that someone at Yahoo! analyzed Yahoo!'s
business records and concluded that (1) a crime had likely been
committed and (2) a particular user likely committed that crime.12
Thus, every Yahoo! CP Report was a new statement that conveyed an
12
We do not treat the pictures themselves as business records of
Yahoo!. However, the association between a picture and an account
is clearly a business record of Yahoo!; without keeping track of
these associations, Yahoo! could not figure out which photos on its
servers belonged to which users.
-51-
analysis that had not existed previously. The new statement was,
in effect, "someone has committed a crime, here is the evidence
that a crime was committed, and here is how to identify the
perpetrator." The primary purpose of this new statement was law
enforcement-related, even if the primary purpose of the data used
to support the statement was not. Our conclusion here is
strengthened by the fact that in preparing the CP Reports, the
Yahoo! employees removed the images they thought did not depict
child pornography, as said images would presumably not be relevant
to the prosecution of a child pornography crime.
The fact that Yahoo! attached to each CP Report the
records that justified its analysis -- the Account Management Tool,
Login Tracker, and Image Upload Data -- does not mean that the CP
Report itself was not a new statement. By creating the CP Report,
the author of the report went beyond simply furnishing pre-existing
records and crossed the line into testifying regarding the meaning
of those records; in this circumstance, Cameron had the right to
confront the author. Cf. Meléndez-Díaz, 557 U.S. at 322 (noting
that traditionally, a clerk was allowed to "'certify to the
correctness of an [official] record kept in his office,' but had
'no authority to furnish, as evidence for the trial of a lawsuit,
his interpretation of what the record contains or shows, or to
certify to its substance or effect'") (quoting State v. Wilson, 75
So. 95, 97 (La. 1917)). Indeed, the distinction between business
-52-
records and statements about those records was recognized by the
Eighth Circuit in Ali, a case on which the government relies. In
Ali, the prosecution introduced "exhibit 95," which consisted of
two parts: (1) records from a bank, HSBC, regarding three
taxpayers' refund anticipation checks; and (2) a letter from a
manager at HSBC that explained the meaning of the records. 616
F.3d at 751. The HSBC manager wrote that the letter was a "written
statement to verify that [the three taxpayers] filed 2002 income
tax returns with Cedar Tax Services and applied for Refund
Anticipation Checks." Id. The Eighth Circuit held that while the
bank records were nontestimonial, "[t]he letter was arguably
equivalent to live, in-court testimony and thus not admissible as
a business record." Id. at 752.13
13
At oral argument, the government analogized Yahoo! to a bank
that records statements of financial transactions. The government
contended that if the bank detected suspicious activity in certain
statements, and if the bank collected those statements and reported
those transactions to the authorities, the bank's financial
transaction statements would not become testimonial simply because
the bank aggregated them in order to make its report. In support
of this proposition, the Government relied on United States v.
Naranjo, 634 F.3d 1198 (11th Cir. 2011).
However, the government's analogy is inapplicable to the
analysis of the CP Reports. The bank records in the government's
example are the equivalent to the Account Management Tool, Login
Tracker, or Image Upload Data in this case. These documents, like
the bank records in the government's example, did not become
testimonial simply because they turned out to be relevant to a
prosecution. The CP Reports, however, have no equivalent in the
government's example. The Reports are documents that contain
analyses based on certain other records that were performed only
after criminal activity was detected.
-53-
It may be the case that the new statement represented in
each CP Report -- "someone has committed a crime, here is the
evidence that a crime was committed, and here is how to identify
the perpetrator" -- was an obvious conclusion based on the
underlying data. Presumably any Yahoo! employee who saw child
pornography images in a user's account would conclude that the user
is at least a "suspect" in a child pornography crime, and that the
"suspect's" IP address is the one associated with that account.
But one small analytical step for man can sometimes be one giant
leap for Confrontation Clause purposes. To hold that the CP
Reports are admissible without confrontation as business records
simply because they state obvious conclusions based on data in
other business records would be to "return to [the Supreme Court's]
over-ruled decision in [Ohio v. Roberts], which held that evidence
with 'particularized guarantees of trustworthiness' was admissible
In addition, Naranjo is of limited relevance to this case
because it is clearly distinguishable on its facts. In Naranjo,
the Eleventh Circuit held that bank records and checks could be
admitted into evidence as non-testimonial business records. 634
F.3d at 1213-14. However, the defendant's Confrontation Clause
argument on appeal was aimed not at these records, but on summary
charts based on the records that were prepared by a government
agent. The Eleventh Circuit held that the charts were admissible
because they simply summarized underlying data that was non-
testimonial. Id. at 1213. However, the defendant was able to
cross-examine the agent who prepared the summary charts, and the
district court had instructed the jury to refer to the charts "only
as an aid . . . and not for the truth." Id. (internal quotation
marks omitted). Here, Cameron had no opportunity to cross-examine
the author of the CP Reports. Moreover, we deem the CP Reports to
be more than a mere "summary" of other data; rather, they are an
analysis of other data.
-54-
notwithstanding the Confrontation Clause." Meléndez-Díaz, 557 U.S.
at 317 (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)). See also
Crawford, 541 U.S. at 62 ("Dispensing with confrontation because
testimony is obviously reliable is akin to dispensing with jury
trial because a defendant is obviously guilty. This is not what
the Sixth Amendment prescribes.").
Because the CP Reports were testimonial, the receipts
stored by Yahoo! were necessarily testimonial as well. Thus, they
should not have been admitted without giving Cameron the
opportunity to cross-examine the Yahoo! employees who prepared the
CP Reports. We therefore conclude that the admission of the
receipts in this case violated Cameron's rights under the
Confrontation Clause.
4. CyberTipline Reports
Cameron also assails the admission of the NCMEC
CyberTipline Reports, arguing further violations of his rights
under the Confrontation Clause. The government's response is that
the CyberTipline Reports are not actually "statements" of NCMEC,
because NCMEC merely forwards Yahoo!'s CP Reports to the
appropriate law enforcement agency. We conclude, however, that
this argument is unavailing, as we have already determined that the
Yahoo! CP Reports from which the CyberTipline Reports are derived
are testimonial. By the government's logic, NCMEC would simply be
forwarding testimonial statements made by Yahoo! to law
-55-
enforcement. Therefore, the Confrontation Clause problems we find
with the admission of CP Reports taint the admission of the
CyberTipline Reports.
In any event, we are not convinced that the record
supports the government's contention that the CyberTipline Reports
"contain exactly the same information present in" the Yahoo! CP
Reports. In fact, we believe the record supports an opposite
reading, which is that NCMEC does not always send along exactly
what it receives from Yahoo! to law enforcement. Our analysis
below supports the conclusion that these reports were new
statements made by NCMEC and constituted testimonial hearsay
statements which were admitted into evidence in violation of
Cameron's Confrontation Clause rights.
First, the CyberTipline Reports were introduced into
evidence to prove the truth of the matters asserted in them. Our
previous discussion outlining the district court's reasoning in
admitting the Yahoo! CP Reports demonstrates that the CyberTipline
Reports were admitted as part of a batch of evidence aimed at
proving that Cameron had uploaded child pornography images onto
several Yahoo! accounts. In fact, without the CyberTipline Reports
the prosecution would not have been able to prove Cameron's guilt
as to Counts One, Two, Three, Four, Five, Eleven and Fourteen of
the Indictment, which exclusively charge Cameron with uploading
digital images of child pornography onto specific Yahoo! accounts
-56-
on specific dates. The only piece of evidence the government could
have relied on to establish the specific dates on which Cameron had
uploaded the offending images was the CyberTipline Reports, which
reflected the date and time on which the most recent image of child
pornography had been uploaded, as well as the IP address from which
that upload had originated.14
The receipts of the Yahoo! CP Reports alone were not
enough to sustain Cameron's convictions under the above-referenced
counts because they did not contain the specific date of each
upload, nor did they contain the actual images that were uploaded.
As mentioned earlier, a list of the IP Addresses from which each of
the images were uploaded, along with the date and time of each
14
For example, Count Eleven charged Cameron with uploading child
pornography images to the "lilhottee00000" account on July 26,
2007. The evidence from Time Warner and other sources showed that
Cameron's residence had been assigned the IP address 76.179.26.185
on that date. To show that child pornography was uploaded to the
"lilhottee00000" account on that date, the government pointed to a
CyberTipline Report for "lilhottee00000." This Report indicated
that the "most recent file or image upload available" in the data
sent from Yahoo! was uploaded from 76.179.26.185, and further
indicated that the "upload date" was July 26, 2007 at 9:37 AM
Pacific Daylight Time. We have found no other exhibit in the
record that indicates that child pornography was uploaded to the
"lilhottee00000" account on July 26, 2007. Nor is there any other
exhibit that shows that child pornography was uploaded to this
account from IP address 76.179.26.185. The CP Report that Yahoo!
sent to NCMEC for "lilhottee00000" does not show the times at which
images were uploaded or the IP addresses from which they were
uploaded (the report shows a "Suspect IP Address" of 76.179.26.185,
which is the IP address Yahoo! "associated" with the account, but
Lee did not explain how the address was "associated"). The Image
Upload Data attached to the CP Report had this information,
according to Lee, but the government does not appear to have
introduced this data into evidence.
-57-
upload, was contained in the Image Upload Data that Yahoo! sent to
NCMEC as part of each CP Report. However, from our review, it does
not appear that this data was included with the CP Report receipts
the prosecution introduced at trial, or anywhere else on the record
for that matter. Therefore, the CyberTipline Reports were
introduced -- and admitted -- into evidence to prove the truth of
the assertions contained therein, most importantly: that child
pornography images were uploaded onto a particular Yahoo! account,
and that the most recent one of those images was uploaded from a
specific IP Address on a specific date and time.
The reasoning above defeats the government's argument
that the CyberTipline Reports are not really "statements" of NCMEC
because all they do is simply convey information sent to NCMEC by
companies like Yahoo! to law enforcement. The government relies on
testimony from Shehan, the NCMEC witness, to the effect that NCMEC
does not add anything to the reports it receives via the
CyberTipline, aside from a "report ID" number and an "entry date"
for the report. However, this does not explain the fact that the
CyberTipline Reports reflect the date and time of the most recent
child pornography image upload, while the receipts of the Yahoo! CP
Reports do not. As mentioned earlier, the only reasonable
explanation we can surmise is that the NCMEC employee who created
these reports analyzed the information contained in the Image
Upload Data sent by Yahoo!, picked the IP Address from which the
-58-
most recent image was uploaded, and included this information,
along with the date and time of that upload, in the CyberTipline
Report. We note that the Yahoo! CP Reports did not specify whether
the “Suspect IP Address” was the IP Address from which the most
recent image of child pornography had been uploaded, a
representation which was in fact made in the CyberTipline Reports.
Therefore, in order to make this representation, the NCMEC employee
who prepared the CyberTipline Reports had to have analyzed the
Image Upload Data sent by Yahoo!.
In doing so, the NCMEC employee undertook a similar
exercise to the one performed by the Yahoo! employee who created
the CP Reports; they both analyzed the underlying information in
the Image Upload Data and then used that information to create a
separate, independent statement. The new statement made by NCMEC
can be characterized along these lines: "based on the Yahoo! data,
we have determined that the IP Address used by the suspect to
upload the most recent image of child pornography is X, and the
date and time of this upload is Y and Z."
Having determined that the CyberTipline Reports were
indeed new statements by NCMEC, the question now is whether they
were testimonial. The answer must be "yes," for it is clear that
the "primary purpose" of a CyberTipline Report is to "establish[]
or prov[e] past events potentially relevant to later criminal
prosecution." Bullcoming, 131 S. Ct. at 2714 n.6 (internal
-59-
quotation marks and citation omitted). Indeed, Shehan conceded as
much during cross-examination:
Q: "Mr. Shehan, the sole purpose of the
reports that are embodied by Exhibits . . .
10A through 10M [the CyberTipline Reports] is
to prove facts at trial, correct?"
A: "It's to be part of the record, yes."
In addition, the primary purpose is also reflected on the face of
the reports themselves, which state: "Law enforcement officials
please be advised: this Report is being provided solely for the
purpose of a law enforcement investigation into possible criminal
behavior." (emphasis on original removed).
Even without the above, we would have no trouble finding
that the CyberTipline Reports were testimonial. As such, they
could not have been admitted without giving Cameron the opportunity
to cross-examine their authors. Shehan admitted that he was "not
the original analyst who processed" the Yahoo! CP Reports in this
case. Thus, the admission of the CyberTipline Reports in these
circumstances violated the Confrontation Clause.
E. Harmless Error Analysis
That certain evidence was admitted in violation of
Cameron's Confrontation Clause rights does not necessarily mean
that we must reverse Cameron's convictions on any counts. Instead,
we must determine whether or not the error was harmless beyond a
reasonable doubt; if the error was harmless, we will not reverse.
See United States v. Meises, 645 F.3d 5, 24 n.26 (1st Cir. 2011)
-60-
("Constitutional errors, such as a Confrontation Clause violation,
require reversal unless shown to be harmless beyond a reasonable
doubt." (emphasis added) (citing United States v. Cabrera-Rivera,
583 F.3d 26, 36 (1st Cir. 2009))). In Cabrera-Rivera, we explained
that
[i]n evaluating harmlessness, we consider a
number of factors, including whether the
challenged statements were central to the
prosecution's case; whether the statements
were merely cumulative of other (properly
admitted) evidence; the strength of
corroborating or contradicting evidence; the
extent to which cross-examination was
permitted; and the overall strength of the
case.
583 F.3d at 36 (citing Earle, 488 F.3d at 546). The burden of
proving harmlessness is on the government. Earle, 488 F.3d at 545(referring to "[the government's] burden of showing that any such
error was harmless beyond a reasonable doubt").
It is clear that for many of the counts of conviction,
the CP Report receipts and CyberTipline Reports were not even
relevant, much less "central," to the prosecution's case.
Cameron's guilt on the five counts related to Google Hello --
counts Six, Seven, Nine, Twelve, and Thirteen -- was provable
beyond a reasonable doubt using the Google Hello Connection Logs,
which were properly admitted. Likewise, Cameron's Yahoo! email and
the child pornography found on his computer showed beyond a
reasonable doubt that he received child pornography via email as
charged in Count Ten. Finally, Cameron's guilt on Count Fifteen,
-61-
the child pornography possession count, was proven using the child
pornography images found on his computer. Cameron argues that
"spillover" prejudice from the improperly admitted records taints
these convictions as well, but this argument is meritless.
Cameron's trial was a bench trial, and we are confident that the
district court was capable of recognizing which evidence was
relevant for each count of conviction. Cf. United States v. Zayas,
876 F.2d 1057, 1059 (1st Cir. 1989) (in the context of bench trial,
holding that "spillover effect . . . was minimal").
However, for those counts that were based solely on
Cameron's alleged uploading of child pornography images to Yahoo!
accounts -- counts One, Three, Four, Five, Eleven, and Fourteen --
we conclude that the admission of the Yahoo! CP Reports and the
CyberTipline Reports was not harmless. As we have explained, in
those counts the government charged Cameron with very specific
conduct: uploading child pornography to specified Yahoo! Photo
accounts on specified dates. The government was able to establish
which IP addresses Cameron had on the dates in question through
evidence from Time Warner and other companies. But to prove that
Cameron actually uploaded child pornography to the accounts in
question on the dates in question, the government needed to
introduce evidence showing that (1) child pornography had been
uploaded to those accounts on the specific dates in question from
the same IP addresses that Cameron had on those dates; and (2) no
-62-
one else in Cameron's household but Cameron himself could have been
the one who uploaded the images. And again, as far as we can tell
from the record, the only evidence that was introduced to
demonstrate the upload dates and the upload IP addresses was the
CyberTipline Reports. Thus, the improperly admitted reports were
"central to the prosecution's case" and were not "cumulative of
other (properly admitted) evidence." Cabrera-Rivera, 583 F.3d at
36.15
Our result might be different if the government could
point us to other admitted evidence specifically showing (1) that
child pornography had been uploaded to the accounts identified in
the indictment (2) on the dates specified in the indictment (3)
from the IP addresses that Cameron had on those dates. For
example, the government might have introduced the Image Upload Data
from Yahoo!; the government presumably could have acquired this
data, as Lee testified that Yahoo! stored it with the receipts.
However, it is not clear from the trial transcript or the parties'
briefs whether Yahoo! in fact produced this to the government; and
in any case, it appears the government did not attempt to introduce
it at trial. Since it is the government's burden to prove
harmlessness, and since we find no indication that any alternate
15
Cameron does not challenge the government's showing that neither
his wife nor his children could have been the ones who uploaded the
images.
-63-
evidence was actually admitted, we must reverse Cameron's
convictions for Counts One, Three, Four, Five, and Eleven.16
F. Sentencing Challenge
Because we must reverse Cameron's conviction with respect
to six counts, we need not reach his sentencing challenge at this
time. Upon remand, the district court may consider in the first
instance whether its original calculation of the number of photos
attributable to Cameron is still valid in light of the reversal of
the convictions on Counts One, Three, Four, Five, Eleven, and
Fourteen.
III. Conclusion
Before concluding, we pause to reiterate, for clarity's
sake, what we have (and perhaps more importantly, what we have not)
held today. Our holding today does not mean that non-testimonial
business records somehow become testimonial simply because the
government seeks to use them as evidence against a criminal
defendant. However, if business records are testimonial, then a
defendant must be given an opportunity to confront the authors of
those records. What the government did in this case was seek to
16
During oral argument, counsel for the government seemed to admit
that the admission of the Yahoo! CP Reports was harmful to several
counts of the indictment, but stated that the admission of the
CyberTipline Reports was not. We take the government at its word
that the CP Reports were harmful, but disagree with its
characterization of the CyberTipline Reports, as it is evident that
these were central in proving that Cameron had uploaded child
pornography images on the specific dates set out in the indictment.
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introduce, absent confrontation of the authors, out-of-court
statements that: (1) did not exist before criminal activity was
discovered; (2) stated conclusions (though perhaps obvious ones)
about the meaning of underlying data; (3) were created for the
express purpose of reporting criminal activity and identifying the
perpetrator of that activity; and (4) were reported to a
government-funded entity that serves as a conduit for passing
information to law enforcement. This, we hold, the government
cannot do.17
We reverse Cameron's convictions on Counts One, Three,
Four, Five, Eleven, and Fourteen, and vacate his sentence as to
those counts. We affirm Cameron's convictions on the remaining
Counts. We remand to the trial court for further proceedings
consistent with this opinion, including a new trial on Counts One,
Three, Four, Five, Eleven, and Fourteen, if the government wishes
to so proceed.
AFFIRMED in part, REVERSED in part, and REMANDED.
"Dissenting opinion follows"
17
As the Supreme Court discussed recently in Williams, there are
special rules that apply to testimony by expert witnesses about the
conclusions they draw from underlying data. See 132 S. Ct. at
2233-35, 2239-41. Because there was no expert testimony at issue
in this case related to image upload times or IP addresses (the
only expert testimony, from Dr. Ricci, concerned the age of persons
depicted in the images), our analysis is not disturbed by the
Supreme Court's conclusions in Williams about expert testimony.
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HOWARD, Circuit Judge (dissenting in part). I dissent
only with respect to the majority's conclusion that the district
court's decision to admit the Yahoo! reports and the NCMEC
CyberTipline reports ran afoul of the defendant's Sixth Amendment
Confrontation Clause protection. From my vantage, the majority is
taking an unjustified step beyond what current Supreme Court
precedent dictates in the developing arena of what documents
bearing the hallmarks of business records and offered as evidence
in a criminal trial constitute or contain testimonial statements
for purposes of the Confrontation Clause. Because I do not see the
documents targeted by the majority as containing a testimonial
statement in the manner advanced by the appellant, I would not
disturb the district court's decision to admit the documents.
The Sixth Amendment's Confrontation Clause confers upon
an accused in a criminal prosecution the right to be confronted
with the witnesses against him. U.S. Const. amend. VI; see
Bullcoming v. New Mexico, 564 U.S. __, 131 S. Ct. 2705, 2713
(2011); United States v. Phoeun Lang, 672 F.3d 17, 21 (1st Cir.
2012). This constitutional mandate affords a criminal defendant
procedural protection by guaranteeing that the reliability of
certain evidence, tagged "testimonial hearsay," can be tested by
cross-examining the one "bear[ing] testimony" against him.
Crawford v. Washington, 541 U.S. 36, 51, 53 (2004); accord Davis v.
Washington, 547 U.S. 813, 823–24 (2006). Of course, the
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reliability of all evidence offered against a criminal defendant is
always at the forefront of a trial court's gatekeeping role, but
the Sixth Amendment guarantees the opportunity for a particular
manner of testing reliability, cross-examination, for a particular
type of evidence, testimonial out-of-court statements offered for
the truth of the matter asserted by the declarant. See Williams v.
Illinois, 567 U.S. __, 132 S. Ct. 2221, 2232-35 (2012) (plurality);
Crawford, 541 U.S. at 59-60 n.9 (citing Tennessee v. Street, 471
U.S. 409, 414 (1985)). Evidence offered by the government that is
an out-of-court testimonial witness statement cannot be admitted at
a criminal trial unless the declarant of that testimonial statement
is unavailable and the accused has had an opportunity to
cross-examine the declarant on a prior occasion. See Crawford, 541
U.S. at 59 & 60 n.9; see Lang, 672 F.3d at 22.
The Supreme Court has recited various formulations of the
"core class of 'testimonial' statements" as including
(1) "ex parte in-court testimony or its
functional equivalent—that is, material such
as affidavits, custodial examinations, prior
testimony that the defendant was unable to
cross-examine, or similar pretrial statements
that declarants would reasonably expect to be
used prosecutorially," (2) "extrajudicial
statements contained in formalized testimonial
materials, such as affidavits, depositions,
prior testimony, or confessions," and (3)
"statements that were made under circumstances
which would lead an objective witness
reasonably to believe that the statement would
be available for use at a later trial."
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Lang, 672 F.3d at 22 (quoting Crawford, 541 U.S. at 51-52)
(ellipsis omitted). While the Court initially did not endorse any
particular formulation as circumscribing the bounds of testimonial
hearsay, see Davis, 547 U.S. at 822, it seems to have since
ratified the above list, at least as being illustrative. See
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309-10 (2009); Lang,
672 F.3d at 22. And in recent years, the Court has considered the
scope of "testimonial" statements, particularly in the police
interrogation setting, see Davis, 547 U.S. 813, and with respect to
scientific reports, see Bullcoming, 131 S. Ct. 2705; Melendez-Diaz,
557 U.S. 305; see also Williams, 132 S. Ct. 2221.
In this case, Cameron argued vigorously to the trial
court that the various digital images and related materials that
had been derived from Yahoo!, NCMEC and Google sources must be
excluded from evidence unless the government produced at trial the
percipient witness who found and seized the electronic contraband
and transmitted it to the government. In one pleading defense
counsel posited, "[t]he figurative elephant in the room revolves
around whether Mr. Cameron must be given an opportunity to confront
each and every witness who supplies evidence that the government
will use to prove that Mr. Cameron committed the alleged offenses."
In his motion for a new trial, the defendant insisted that the
"testimonial qualities" of the various evidence -- particularly the
Yahoo! evidence introduced by witness Lee -- was "obvious."
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Failing to persuade the trial court, the defendant now
brings his constitutional plaint before us. As the majority notes,
Cameron does not parse out the testimonial nature of each of the
various pieces of digital and documentary evidence originating from
Yahoo!, NCMEC, and Google. Instead, he takes the global position
that "any report which discloses the location where evidence was
seized must be testimonial." With a sweeping stroke, Cameron
argues that because such reports attest to the location where the
digital images themselves were found, they are "clearly testimonial
statements" that are identical to a statement that "I found the
drugs in the defendant's car" or "I found the gun in the
defendant's garage." To test the veracity of these purported
statements about location that are embedded within the reports, the
appellant claims that he was entitled to cross-examine the
person(s) who found the records about how, when and where the CP
images were located.
I agree with the majority that the admission of evidence
pertaining to the Yahoo! Account Management Tool, the Yahoo! Login
Tracker data, and the Google Hello Connection logs does not
implicate the Confrontation Clause. I do not, however, view the
Yahoo! reports (presented in the form of receipts to the judge
sitting as fact finder), and by extension the NCMEC CyberTipline
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reports, as amounting to testimonial statements in the manner
argued by the defendant and decided by the majority.18
To begin, I emphasize that the Sixth Amendment is
concerned with testimonial statements that are being offered for
the truth of the matter asserted. See Williams, 132 S. Ct. at
2232-35; Crawford, 541 U.S. at 59-60 n.9. And so, it is important
to look to the government's purpose in admitting the Yahoo!
reports.
While the defendant likens the Yahoo! reports to witness
testimony of the location of contraband, the government did not
offer any Yahoo! report for the truth of any averment in it that
the stored images found in the particular Yahoo! photo album
actually were contraband or even "suspected" contraband. Indeed,
the government was clear that even the illicit descriptive
"original names" of some of the image files (not assigned by a
Yahoo! employee) listed in the report's table should not be relied
on to assess the illegal nature of the actual digital images.
Rather, the government provided the testimony of an expert in child
abuse who analyzed each image in relation to the "Tanner stages" to
establish that the sexually graphic images in fact depicted
children within a certain age span.
18
For the same reasons as the majority does, I refer solely to the
Yahoo! reports when conducting the constitutional analysis here.
I also note that numerous receipts of the Yahoo! reports were
admitted into evidence and at times, I reference a report in the
singular simply for ease in exposition.
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Moreover, the appellant provides no record support to
show that the district court, as the trier of fact in this case,
somehow relied on the Yahoo! reports to determine whether or not
the images themselves constituted child pornography. The trial
court was quite clear that the documentary evidence was admitted
for the purpose of providing a link between the images alleged to
be child pornography that were found on the Yahoo! server, and the
particular identified user name (also sometimes referred to in the
evidence as "screen name" or "login name") and IP address that
Yahoo! associated with that user name. The trial court also
referred to the various "ISP documents" admitted into evidence in
relation to the image archives as "chain of custody evidence."
Accordingly, the constitutional analysis is properly
confined to whether an admitted Yahoo! report contains testimonial
statements that the images listed in the report and provided as
digital evidence were located in the photo album account associated
with a particular user name (such as "harddude0000") and a
particular IP address Yahoo! associated with that user name (such
as "76.179.26.185"). Certainly, the reports reflect this location
connection. But a review of both Lee's testimony explaining the
process of data storage and retrieval followed by Yahoo!, as well
as the reports themselves, leads to the conclusion that the Yahoo!
reports do not contain any testimonial statements.
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For his part, the defendant generally speaks of all of
the records that accompany the digital images as "affidavits that
attest to the location" of where the images were found, but he does
not analyze each document type. Instead, he likens the sum of the
reports in this case -- including the Yahoo! reports -- to the
evidence at issue in Melendez-Diaz and Bullcoming, arguing that the
records "were admitted as computer forensic evidence obtained by
unknown persons using unknown methods and presented by substitute
witnesses" in violation of his Sixth Amendment right to
confrontation. The comparison, however, is inapt.
The heart of the testimonial hearsay in Melendez-Diaz was
a certification statement akin to an affidavit made by a state
forensic laboratory analyst attesting to the fact that the
forensically analyzed substance was cocaine; the substance had been
seized by law enforcement and delivered to the state laboratory for
analysis of its contents. 557 U.S. at 308. The certificates were
offered as substantive evidence to prove the truth of the assertion
that the nature of the substance was actually cocaine, an assertion
generated by a scientific forensic analysis specifically engaged in
to produce evidence for use at a criminal proceeding. Id. at 310-
11.
The circumstances of Bullcoming are similar. The
testimonial statement in that case consisted of a certification by
an analyst akin to a "formalized signed document" attesting to the
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fact that a blood sample contained an alcohol content of "0.21
grams per hundred milliliters"; the blood had been drawn from the
defendant at a local hospital in connection with a driving under
the influence charge and delivered to the state laboratory by law
enforcement for forensic analysis of its contents. 131 S. Ct. at
2710, 2716-17. The certificate was offered as substantive evidence
to prove the truth of the assertion as to the level of alcohol
content in the blood sample, an assertion generated by a scientific
forensic analysis specifically engaged in to produce substantive
evidence for use at a criminal trial. Id. at 2711, 2713, 2716-17.
Here, the defendant is left to argue that the purported
statement in a Yahoo! report offered for its truth is that the
digital images were found in the Yahoo! photo album tied to the
identified user name and the associated IP address. For its part,
the majority seizes on the IP addresses identified in the Yahoo!
reports because in one instance a different IP address was recorded
in the Account Management Tool for the identified user name. The
majority surmises that both the government and the district court
took the IP address identified in a Yahoo! report to be the one
from which the most recent image of child pornography had been
uploaded into a Yahoo! photo album. From this the majority
concludes that the government used the Yahoo! reports to tie the
defendant to the specific IP addresses from which child pornography
images were uploaded. Even so, I part ways with the majority
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because the link in any given Yahoo! report between the
incriminating images and the accompanying user name and IP address
is not a testimonial statement.19
To the extent the connection between the identified user
name, the associated IP address, and the digital images archived
from that user's photo album can be deemed a declarant statement,
that location connection existed well before Yahoo! even received
the customer complaint about the content of the images associated
with the screen name "lilhottyohh". Indeed, the thrust of Lee's
testimony was that the storage of the digital images and the
associated account data on the Yahoo! servers was an essential part
of the Yahoo! photo album service. The record indicates that the
computer systems and retrieval tools for locating images in any
given user's photo album (along with stored account information
gathered with the archive such as the associated IP address) were
the same as those Yahoo! uses to locate all information stored
about a user on the servers for its ordinary business functions.
It is helpful to amplify the record on this point.
As the majority notes, Yahoo! is an Internet Service
Provider portal which, as Lee explained, is in the business of
19
The majority begins its discussion on the testimonial nature of
the reports by examining their facial features, focusing on the
term "suspect" that is contained in some "fields" that list certain
types of information, such as "Suspect IP Address." I think it
more likely that "suspect" is used as an adjective in the reports
to delineate the suspicious address and user names, not, as the
majority says, as a noun targeting a specific person.
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providing several internet services to its users, such as internet
searching, email, "messenger," and (as of the time of the criminal
conduct at issue) a photo album service. Various types of
information or data relating to Yahoo! users and the services that
each user employed are stored on servers. Such stored information
includes emails, email "address books," "friends" lists, user
registration information, and login history. Data pertaining to
the photo album service -- the stored digital images -- was handled
no differently. This service allowed a Yahoo! user to load digital
images from various sources -- such as an email attachment or an
internet site -- to an internet photo album associated with that
user's Yahoo! account. The service enabled a user to store digital
images on a Yahoo! server and then easily share the stored photo
album with other internet users by sending them the URL link to the
album's internet location. Once loaded to the photo album, the
digital images remained automatically stored on Yahoo! servers
unless and until the user deleted them (although Yahoo! also could
eliminate access to the images by deactivating a user's account).
Lee's testimony shows that each type of stored
information or data pertaining to each Yahoo! user or "screen name"
is accessed by Yahoo! employees using the same methodology. The
method consists of a Yahoo! employee, such as one in the customer
care department, inputting a user name into a particular retrieval
tool associated with certain types of stored information, such as
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the Account Management Tool or Login Tracker. The computer tool
then automatically accesses the stored information related to that
tool and displays it for the Yahoo! employee to review. Some tools
compile various data; the Account Management tool, for example,
collects the IP address recorded when a user first creates an
account and the registration information provided by that user,
among other stored information. Lee testified that these systems
of data storage and retrieval are relied upon by Yahoo! to provide
reliable and accurate data on customer accounts in order to conduct
its business as an ISP. Lee explained that the same systems and
tools also are used to access stored data pertaining to users when
Yahoo! responds to a search warrant or any other legal process.
There is absolutely no indication in this record that the
archives for the digital images from photo albums associated with
the various Yahoo! user names in this case (as well as the IP
addresses and other account data included with each image archive)
were created, generated, or developed outside of this routine
administrative methodology for retrieving stored user account data
-- a process which itself necessarily links the location of the
retrieved stored data to the user name inputted. That the
retrieved digital images stored on the server were captured
electronically for purposes of transmitting them to the legal
department is no different from the location connection created
between data and user each time other types of stored data are
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retrieved and printed (or otherwise transmitted) for review, such
as a user's login history, "friends" list, or email "address book."
In short, the purported location statement made by the stored image
archive itself (along with other accompanying stored user data),
and reflected in the Yahoo! reports, was not made for the primary
purpose of establishing or proving a fact or past event for
criminal prosecution, but for the very functioning of the ISP
business operations. See generally Williams, 132 S. Ct. at 2243("the primary purpose of the [scientific] report, viewed
objectively, was not to accuse petitioner or to create evidence for
use at trial"); Bullcoming, 131 S. Ct. at 2714 n.6 ("To rank as
'testimonial,' a statement must have a primary purpose of
establishing or proving past events potentially relevant to later
criminal prosecution." (internal quotation marks and brackets
omitted)); Melendez-Diaz, 557 U.S. at 324 (noting that business
record "having been created for the administration of an entity's
affairs and not for the purpose of establishing or proving some
fact at trial . . . are not testimonial").20
Also, Lee testified that the Yahoo! reports
electronically transmitted to NCMEC comprise the same image
archives captured by a customer care employee (along with stored
account information gathered with the archive); the only difference
20
The "primary purpose" inquiry of the statement's "testimonial"
nature focuses on the declarant's purpose in making the statement.
See Davis v. Washington, 547 U.S. 813, 822-23 n.1, 826-28 (2006).
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is that any images that the Yahoo! legal department employee does
not suspect as containing child pornography are not included in the
report. Thus, the location link between the images and the user's
account is simply memorialized by an administrative process when
the archive is created, which is simply repeated in the Yahoo!
report sent to NCMEC. Then, a Yahoo! report receipt is
automatically generated via computer, including the sequential list
of numeric "Legal Archive Tool" image names.
I disagree with the majority's conclusion that the Yahoo!
reports are distinct from the other documents targeted by the
defendant in this case, such as the Account Management Tool,
because "they convey an analysis that was performed using pre-
existing data" and make "an entirely new statement reflecting []
conclusions" drawn from such an "analysis." I suppose that this
could be the case if the government were using the Yahoo! reports
for the truth of an assertion that the images in fact were child
pornography or suspected child pornography. But, as I began, the
government did nothing of the sort. The conveyance of any analysis
that a Yahoo! employee performed to deem some images in certain
user photo albums to be suspect was not the purpose of the
exhibits' admission. And, I might add, it is the purported
location statement -- linking the images (and other stored data) to
the identified user name and the associated IP address -- to which
this appellant objects. The record reflects that the location
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connection was not generated by a forensic analysis performed to
produce substantive evidence at a criminal trial in the manner that
was central to the testimonial nature of the certification reports
in both Melendez-Diaz and Bullcoming.
The majority emphasizes that (1) the retrieval process
for the digital images in this case began once Yahoo! received a
tip associating images of child pornography with a particular
user's account, (2) the particular Yahoo! reports at issue were
generated as part of a process that Yahoo! developed to comply with
its legal duty to report any apparent violation of federal child
pornography laws to NCMEC, (3) the reports were delivered to NCMEC,
which operates, in part, as a type of clearinghouse for ISP reports
to law enforcement regarding suspected child pornography, and (4)
the actual Yahoo! report documents (the receipts) did not exist
before the discovery of the suspected criminal activity. These
circumstances do not alter the conclusion that the putative
statement that there is a location connection between user and
stored data (including digital images and information relating to
the Account Management Tool or the Login Tracker) pre-existed any
customer complaint or other event that would trigger the retrieval
of such data, and the process for retrieving the various stored
data is not performed through a forensic analysis engaged in to
produce substantive evidence at a criminal trial. And, as I have
explained, any new statement about the content of the images
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containing suspected child pornography was not offered for the
truth of the matter asserted.
In summary, while I agree with the majority that evidence
does not escape testimonial hearsay status under the Confrontation
Clause simply because it may otherwise bear the characteristics of
a business record, I do not believe that the location link
displayed in the Yahoo! reports amounts to a testimonial statement
under current Supreme Court precedent or under our own cases. I
disagree with the appellant that the holdings in Melendez-Diaz and
Bullcoming compel a conclusion that admission of the various
"accompanying reports" -- which he labels as "computer forensic
evidence" -- required an opportunity to cross-examine the person(s)
who actually located the stored digital images and created a
corresponding archive associated with each user name photo album.21
And, I see nothing in the most recent Supreme Court discourse on
the Confrontation Clause to alter my view on the import of
Melendez-Diaz and Bullcoming holdings under the facts of this
record. See generally Williams, 132 S. Ct. 2221..
21
The defendant also suggests in his brief that his Sixth
Amendment concerns would have been allayed had the government
presented live testimony of a Yahoo! computer technician to explain
and verify the accuracy of the company's software tools used to
retrieve the digital images and account data. This tack, however,
essentially concedes that the reports contain no witness testimony
whatsoever and reduces his argument to one of authentication. If
this is the appellant's strategy, then the majority's footnote
remark about Rule 803(6) probably suffices for the Yahoo! reports
as well. In the end, though, I make no judgment on authentication
because the issue before us is confined to the Sixth Amendment.
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I respectfully dissent from the majority's conclusion
that admission of the Yahoo! reports and NCMEC CyberTipline
reports22 violated Cameron's rights under the Confrontation Clause,
and so I would affirm the appellant's conviction on all counts.
22
With respect to the NCMEC CyberTipline reports, the majority
concludes that the government appeared to rely on these documents
as the sole evidence establishing the upload dates and times of the
illegal images (the so-called "Image Upload Data"). The majority
also appears to assess the record evidence to determine whether the
government appropriately established through this NCMEC evidence
the transporting-by-uploading element charged in the indictment.
There is no need to consider these issues because the timing of
image uploading is not part of the appellant's Sixth Amendment
argument. There is also no need for me to separately analyze
whether the NCMEC CyberTipline reports contain a testimonial
statement that was offered for the truth of the matter asserted.
For present purposes I take the government at its word that such
evidence essentially parroted the substance of the Yahoo! reports.
Again, I note that the defendant makes no attempt to parse the two
types of documents when advancing his Sixth Amendment plaint.
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