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United States v. Gordon

United States District Court, D. Maine

September 11, 2019




         In anticipation of trial on charges of criminal copyright infringement and mail fraud, the Government moves in limine for a pre-trial ruling on the admissibility of certain trial exhibits under Federal Rules of Evidence 104(a), 803(6), 803(8), and 902(11). Gov't's Mot. in Limine for Determination that Exs. Qualify as Admissible Rs. Under Rule 803 (ECF No. 59) (Gov't's Mot.).

         I. BACKGROUND

         On June 3, 2019, the Government filed a motion in limine to determine whether certain exhibits qualify as admissible records under Rule 803 of the Federal Rules of Evidence. Gov't's Mot.; id., Attachs., Exs. 1-10; Additional Attachs. (ECF No. 60), Exs. 11-18; Additional Attachs. (ECF No. 61), Exs. 19-28. On June 28, 2019, Mr. Gordon filed his response to the Government's motion in limine. Def.'s Resp. to Gov't's Mot. in Limine that Exs. Qualify as Admissible Rs. Under Rule 803 (ECF No. 62) (Def.'s Opp'n). On July 12, 2019, the Government filed its reply. Reply of United States to Def.'s Resp. to Gov't's Mot. in Limine for Determination That Exs. Qualify as Admissible Rs. (ECF No. 65) (Gov't's Reply).


         A. The Government's Motion in Limine

         The Government says various items it intends to offer at trial qualify under the business and public record exceptions of Rule 803. Gov't's Mot. at 2. The Government asserts that the focus of the business records exception is “the requirement that the records be made in the course of and as a regular practice of a regularly conducted business activity.” Id. at 3. It continues, “records kept in the course of regularly conducted activity are admissible unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.” Id. The Government notes that because Rule 803(6) refers to Rule 902(11), for admissibility purposes, it may submit certificates of custodians and/or other qualified witnesses who have attested to the business records instead of calling record custodians as witnesses at trial. Id. at 4. Accordingly, the Government asserts, “[i]n order to facilitate the introduction at trial of the records identified below, the Government has established the authenticity of the records, as well as their admissibility under Rule 803(6), through certifications obtained from the custodians of records, as contemplated by that rule.” Id. at 5.

         The Government claims it has satisfied these requirements for all its proffered pieces of business records evidence. Id. at 7 (referring to Exhibits One through Twenty-A). The Government contends that the records offered were not generated for a criminal prosecution and are non-testimonial; rather, they were prepared in the ordinary course of regularly conducted activities, and the attached certifications satisfy the requisite foundational requirements. Id. at 7-8. Furthermore, the Government avers it has fulfilled Rule 902(11)'s procedural safeguards by providing Mr. Gordon advance written notice of its intent to submit these documents and furnishing the certifications and proffered documents to him. Id. at 8. The Government seeks this preliminary determination to relieve itself of “the burden of transporting record custodians, many of whom are employed out-of-state, to Bangor, Maine . . ..” Id. at 8-9.

         The Government also addresses the public records exception to the hearsay rule under Federal Rule of Evidence 803(8). Id. at 9. The Government notes that “[u]nder Federal Rule of Evidence 902(4)(A), a public record is self-authenticating when the copy is certified as correct by a custodian or another person authorized to make the certification.” Id. According to the Government, a proper certification obviates the requirement of foundational testimony by a record custodian as to a document's authenticity. Id. at 10. The Government argues its six exhibits submitted as public records satisfy Rule 803(8)'s requirements and its attached certifications comply with Rule 902(4)(A). Id. at 11 (referring to Exhibits Twenty-One through Twenty-Six). Moreover, the Government has given Mr. Gordon advanced notice of the Government's intent to submit these documents at trial and has also allowed him to inspect the proffered records. Id. at 11-12.

         The Governments claims that “[c]ertificates of copyright registration made before or within five years after first publication of the motion pictures are prima facie evidence in any judicial proceedings of the validity of the copyrights and of the facts set forth in the certificates.” Id. at 12 (citing 17 U.S.C. § 410(c)). The Government assets that certificates of copyright registration are self-authenticating and that extrinsic evidence as to their authenticity is not necessary as a condition precedent to admissibility because these documents qualify as domestic public documents under seal. Id. at 12-13. As a result, the Government says, the certificates of copyright registration for ninety-two referenced motion pictures contained in Exhibit Twenty-Seven and the certificate of non-existence contained in Exhibit Twenty-Eight are not excludable as hearsay and should “be properly admitted in the absence of any credible evidence from the Defendant disproving the validity of the copyrights.” Id. at 13. The Government adds that the certificates of copyright registration may be introduced through the testimony of Special Agent Loren Thresher and the certificate of non-existence may be introduced through the testimony of the case agent. Id.

         Lastly, the Government asserts that these twenty-eight exhibits raise no Confrontation Clause issues as they were not created for the purpose of a criminal prosecution. It adds that Crawford v. Washington, 541 U.S. 36 (2004), and its progeny demonstrate no Confrontation Clause implications for these preliminary determinations of the admissibility of these exhibits under business and public records hearsay exceptions pursuant to Rule 104 and Rule 803. Gov't's Mot. at 14-19.

         B. Douglas Gordon's Opposition

         Mr. Gordon generally “agrees that the Government has laid out the proper and necessary law for the determination of these matters” but notes some exceptions for specific exhibits. Def.'s Opp'n at 1.

         Mr. Gordon has no immediate objections to the following Government exhibits: Exhibit Two (Bangor Savings Bank Authorization Resolutions); Exhibit Seven (Charter Communications)[1]; Exhibit Ten (Eastern Maine Healthcare Systems Job Application); Exhibit Twelve (Green Dot Bank Cardholder Information); Exhibit Twenty-Two (CAFRA Seized Assert Claim Form); and Exhibit Twenty-Eight (U.S. Copyright Office Certificate of Non-Existence). Id. at 2, 5, 6, 8, 13, 16. Although Mr. Gordon does not have immediate objections to the admissibility of these exhibits, he does reserve all other objections and anticipates objecting to certain interpretations of these exhibits at trial. Id.

         Mr. Gordon argues that a government agent is not a qualified witness to explain or interpret many of the Government's proffered exhibits and thus, these exhibits are inadmissible under Rule 803(6). Id. at 1-3, 8-13, 15. For example, Mr. Gordon objects to the Exhibit One records because “the Government must be able to show some foundational predicate as to what Bancorp is” and he “does not believe that the Government should be able to do this through a Government agent.” Id. at 1. Mr. Gordon does not object to the authenticity of these business records in theory, if the Government laid the foundation differently. Id. at 1-2. Mr. Gordon applies this argument to Exhibits One, Four, Five, Nine, Eleven, Fourteen, Fifteen, Fifteen-C, Sixteen, Seventeen, Eighteen, Nineteen, Twenty, Twenty-A, Twenty-One, Twenty-Five, and Twenty-Six. Id. Mr. Gordon's “primary concern is that the Government will seek to leverage the Court's ruling on the authenticity of any particular records as meaning that a case agent can testify as [to] the meaning of any particular record.” Id. at 16-17 (emphasis in original).

         Mr. Gordon also makes objections to a number of the exhibits on other grounds, as outlined in the discussion of the Government's reply below. Mr. Gordon does not assert any objections based on Sixth Amendment Confrontation Clause grounds.

         C. The Government's Reply

         The Government asserts that a qualified witness is not needed to establish authenticity for the records because the certificates of authenticity meet the business-record requirements under Rule 803(6)(A)-(C). Gov't's Reply at 3. Regardless, the Government argues, government agents can be qualified witnesses for the purposes of Rule 902(11) and Rule 803(6). Gov't's Reply at 3-6 (discussing case law from other circuits in which courts found case agents to be qualified witnesses and allowed them to provide foundation testimony for company records when they understood the record-keeping system and gave detailed testimony). The Government points out that Special Agent Thresher has been investigating this case since January 27, 2014, and can “describe business and public records based on his personal knowledge and rationally based on his perception.” Id. at 6. For example, regarding Exhibit One, the Government states that Mr. Gordon has not challenged the certificate of authenticity, which itself establishes the business-record factors set forth in Rule 803(6)(A)-(C). Gov't's Reply at 9. The Government then reiterates that Special Agent Thresher is a qualified witness because “a proper foundation may be laid, in whole, by the testimony of a Government agent, investigator, or other person outside of a business organization whose records are sought to be admitted so long as the witness used to lay the foundation is familiar with the organization's record-keeping system.” Id. at 9 (citing United States v. Hathaway, 798 F.2d 902, 906 (6th Cir. 1986)). The Government promises that Special Agent Thresher can “describe in general how Bancorp identifies each customer's account and how the company's record-keeping system makes entries noting deposits and expenditures within such accounts” if necessary. Id. at 9-10.

         The Government then discusses Mr. Gordon's objections to each exhibit in turn. The below list details Mr. Gordon's immediate objections on grounds other than Special Agent Thresher being a qualified witness, and the Government's responses. The Government ends by asserting that Mr. Gordon has waived any Confrontation Clause arguments regarding these exhibits. Id. at 34.

         1. Exhibit Three: Bangor Savings Bank Check Deposit Copies

         Mr. Gordon argues that Exhibit Three is “ill-defined” because it is “unclear what the parameters of this exhibit are, what the date range of documents included is, and whether the records are complete or a selected portion of records and how, if less than the full range of documents within the request, the documents included within the exhibit were selected.” Def.'s Opp'n at 2. For these reasons, Mr. Gordon suggests that the Court should require sufficient foundational testimony before admitting this exhibit. Id.

         The Government refutes the contention that Exhibit Three is poorly defined by stating that “[a] comparison of Government Exhibit No. 3 to the BSB check deposit copies produced as discovery material reveals the Government has included only those pages which show copies of checks made payable to” Gov't's Reply at 10. The Government adds that Special Agent Thresher's testimony will be sufficient to provide a proper foundation for the reasons discussed above. Id.

         2. Exhibit Six: Better Business Bureau Complaints

         Mr. Gordon objects to the admittance of the Better Business Bureau (BBB) Complaints on the grounds that they are hearsay, the source of dissatisfied customers indicates a lack of trustworthiness under Rule 803(6), and they are more prejudicial than probative under Rule 403. Def.'s Opp'n at 3-5. Mr. Gordon asserts that the second and third reasons apply even if the complaints are being used only to show that Mr. Gordon was notified of the complaints. Id. Mr. Gordon also distinguishes United States v. Chavis, 772 F.2d 100, 105 (5th Cir. 1985), a case cited by the Government to support the use of the complaints to show notice, by stating that the defendant in Chavis was asserting a “good faith” defense and the records were used in rebuttal only. Def.'s Opp'n at 4-5.

         The Government states that the complaints are not hearsay (within a double hearsay situation) because they are being offered to “reveal the customers' then-existing state of mind” and show that Mr. Gordon was on notice that his customers were dissatisfied, rather than for the truth of the matter asserted. Gov't's Reply at 12 (citing United States v. Southland, 209 Fed.Appx. 656, 658 (9th Cir. 2009); Chavis, 772 F.2d at 105). The Government asserts that the complaints will show that from 2014 through 2017, Mr. Gordon, (FRD), and Lost Movies Found (LMF) repeatedly received email messages from customers complaining of “bootleg, ” “homemade, ” “shoddy, ” and “scam” copies. Id. at 12-13. The Government adds that some of the documents in Exhibit Six contain a “Complaint Timeline” that shows that the online business responded and took action. Id. at 13. According to the Government, “[b]arring admission of the BBB complaints would prevent the Government from meeting its burden and unfairly deprive it of evidence that Mr. Gordon had for years been notified of complaints but nonetheless intentionally continued engaging in such activities.” Id.

         3. Exhibit Eight: Citibank NA Credit Card Statement

         Mr. Gordon objects to the credit card statement on relevancy grounds because the redaction makes it unclear how the statement pertains to Mr. Gordon. Def.'s Opp'n at 5.

         The Government explains that “the Citibank record is the monthly statement of a Special Agent who used his undercover identity and credit card account to purchase a DVD movie from one of the Defendant's online businesses.” Gov't's Reply at 14. The Government maintains that there is no reason the identity and account number of the agent are relevant to the purchase. Id.

         4. Exhibit Nine: Columbia Broadcasting System (CBS) Notices of Copyright and Infringement

         Mr. Gordon objects to the admittance of the three cease-and-desist email messages from CBS to the FRD email account concerning copyright infringement contained in Exhibit Nine. Def.'s Opp'n at 6. He calls into question the accuracy of the business record because of language in a letter from the record custodian accompanying the certificate of authenticity. The letter states that Charter's records are “subject to human error, ” that “Charter cannot always guarantee the accuracy of such records, ” and that one “should not rely solely on this information.” Id. Mr. Gordon also objects to a Government agent testifying to the meaning of the record.

         The Government argues that there is no connection between Charter and CBS, and thus that Mr. Gordon has not “provide[d] a valid reason for challenging the accuracy of the three CBS email notices.” Gov't's Reply at 15. The Government asserts the same argument regarding the use of a Government agent. Id. It adds that Mr. Gordon has not identified any way Special Agent Thresher's testimony will unfairly prejudice him or otherwise confuse issues or mislead the jury under Rule 403. Id.

         5. Exhibit Eleven: Google LLC Subscriber Information, Customer Confirmations, Messages from and to Customers, Google Alerts

         Mr. Gordon objects to the thirty-five-thousand-page exhibit contained in Exhibit Eleven because it “is so problematic that it should not be allowed.” Def.'s Opp'n at 7. Though the records “might properly be authentic business records, ” Mr. Gordon argues, the Government should use a computer expert or other individual with the requisite knowledge to interpret these “voluminous computer records.” Id. Additionally, “the Government should be required to specify particular entries and the particular purpose for which the entry is being offered, what, if any, relevance there may be to the case; and finally, how the Government intends to present this testimony to the jury.” Id. Mr. Gordon anticipates objecting to the records' relevance but has not done so yet.

         The Government responds that the records contained in Exhibit Eleven are Google LLC's response to “a search warrant to disclose the contents of email accounts associated with two email addresses including all records and information regarding identification of the account.” Gov't's Reply at 16. According to the Government, “there is nothing particularly complex” about the records in Exhibit Eleven that prevents a Government agent from testifying about them. Id. The Government argues that there is no need to provide specifics about what entries are being used and how because relevance is not pertinent to the Court's preliminary determination regarding their authenticity and classification as business records. Id. The Government then explains that it plans to use the content of the email messages as evidence that Mr. Gordon was placed on notice regarding his infringing and fraudulent activities and suggests that Mr. Gordon seek a curative instruction or redaction if he is concerned about prejudice or jurors accepting the complaint statements as truth. Id. at 17.

         6. Exhibit Thirteen/Thirteen-A: Neustar, Inc. Subscriber Information/Consolidated Communications Subscriber Information

         Mr. Gordon objects to the certification of this telephone subscriber record because “[t]he connection between Neustar and Fairpoint is unclear from the certification.” Def.'s Opp'n at 8. Mr. Gordon continues, “[t]he Government should not be allowed to use the business record exception to bless this unholy union.” Id.

         The Government responds by providing a new exhibit, Exhibit Thirteen-A, to account for the change in ownership and agents for the communication service provider. Gov't's Reply at 17-18. The new record is from Consolidated Communications and is certified by Quinn Clemmons, an authorized agent for Consolidated Communications. Id. at 18. The Government asserts that Special Agent Thresher can further testify about its contents if necessary. Id. Thus, according to the Government, it satisfies the business-record factors. Id.

         7. Exhibit Fifteen: Square (Weebly) Subscriber Information

         Mr. Gordon objects to Exhibit Fifteen's authenticity and admissibility because “[n]o certification pursuant to the rule is attached and the document appears to be a creation of the Government.” Def.'s Opp'n at 8. Mr. Gordon also objects to a Government agent testifying to the meaning of the exhibit. Id.

         The Government responds that a proper certificate of authenticity is attached and that it did not create Weebly's Admin Dashboard. Gov't's Reply at 19. “Any contention that the Federal government created the subscriber information set forth within Government Exhibit Number 15 is speculative and based entirely on conjecture.” Id.

         8. Exhibit Fifteen-A: Spreadsheet

         Mr. Gordon objects to Exhibit Fifteen-A's authenticity and admissibility because, as above in Exhibit Fifteen, “[n]o certification pursuant to the rule is attached and the document appears to be a creation of the Government.” Def.'s Opp'n at 9. Mr. Gordon adds that the spreadsheet does not seem to fall under Square's original certification under Exhibit Fifteen. Id.

         The Government responds that the spreadsheets contained in Exhibit Fifteen-A “are among the records requested from Square/Weebly which pertain to communications and financial transactions occurring in relation to the LMF website” and are part of the original certification. Gov't's Reply at 19-20. Though Special Agent Thresher “identified and separated certain transactions set forth on the spreadsheets along with other documents, ” the Government argues, “[h]is use of only part of the information provided by Square/Weebly does not amount to a creation by the Government and is not a valid basis for preventing use of such information.” Id. at 20.

         9. Exhibit Fifteen-B: Spreadsheet

         Mr. Gordon's objections and the Government's reply are the same as under Exhibit Fifteen-A. Def.'s Opp'n at 9; Gov't's Reply at 19-20.

         10. Exhibit Fifteen-C: Account Dossier

         Mr. Gordon objects to the admissibility of Exhibit Fifteen-C, including an “Account Dossier” that is marked as Exhibit Sixteen in the documents. Def.'s Opp'n at 9-10.

         The Government responds that it did not file an Exhibit Fifteen-C and Exhibit Fifteen does not include an Account Dossier. Gov't's Reply at 20.

         11. Exhibit Seventeen-A: Stripe, Inc. Spreadsheet

         Mr. Gordon objects to Exhibit Seventeen-A's authenticity and admissibility because it is not certified properly. Def.'s Opp'n at 10. Mr. Gordon argues that “the certification on Exhibit 17 does not contain sufficient information for the Defendant to determine the connection” and that the spreadsheet “appears to be an analysis by the Government which may or may not be based on data provided by Stripe, but which is not part of Stripe's certification.” Id.

         The Government asserts that the certification of authenticity in Exhibit Seventeen applies to Exhibit Seventeen-A because “[a] careful comparison of Exhibit Numbers 17, 17A and 17B will show that Exhibit Numbers 17A and 17B contain parts of the information set forth within Exhibit 17.” Gov't's Reply at 21.

         12. Exhibit Seventeen-B: Stripe, Inc. Spreadsheet

         Mr. Gordon's objections and the Government's reply are the same as under Exhibit Seventeen-A. Def.'s Opp'n at 10-11; Gov't's Reply at 21.

         13. Exhibit Eighteen: Text Now, Inc. Mobile Cell Phone Service Subscriber Information

         Mr. Gordon objects to the admissibility of this record on relevance grounds because he “is unfamiliar with ‘Lucas Knight'” and it “is redacted in such a way that the Defendant cannot determine who the record may refer to.” Def.'s Opp'n at 11. Mr. Gordon also objects to a Government agent interpreting these records, as above. Id.

         The Government responds that it is seeking “entry of an order in limine finding the authenticity and admissibility of Exhibit No. 18 subject to a determination of the exhibit's relevance at trial, ” and thus that relevance is not a proper ground for objection. Gov't's Reply at 21. The Government adds that it will show at trial that “Lucas Knight” is Mr. Gordon's pen name. Id. The Government argues that Special Agent Thresher can testify about the exhibit for the reasons discussed above. Id. at 21-22.

         14. Exhibit Twenty: Yahoo! Inc. Account Management Tool, ...

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