United States District Court, D. Maine
ORDER ON GOVERNMENT'S MOTION IN LIMINE FOR
DETERMINATION THAT EXHIBITS QUALIFY AS ADMISSIBLE RECORDS
UNDER RULE 803
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
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
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).
THE PARTIES' POSITIONS
The Government's Motion in Limine
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.
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
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.
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.
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.
Douglas Gordon's Opposition
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.
Gordon has no immediate objections to the following
Government exhibits: Exhibit Two (Bangor Savings Bank
Authorization Resolutions); Exhibit Seven (Charter
Communications); 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.
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).
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
The Government's Reply
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.
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.
Exhibit Three: Bangor Savings Bank Check Deposit
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.
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 FindrareDVDs.com.” 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.
Exhibit Six: Better Business Bureau Complaints
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.
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, FindrareDVDs.com (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
Exhibit Eight: Citibank NA Credit Card Statement
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.
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.
Exhibit Nine: Columbia Broadcasting System (CBS) Notices of
Copyright and Infringement
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.
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.
Exhibit Eleven: Google LLC Subscriber Information, Customer
Confirmations, Messages from and to Customers, Google
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.
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
Exhibit Thirteen/Thirteen-A: Neustar, Inc. Subscriber
Information/Consolidated Communications Subscriber
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.
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.
Exhibit Fifteen: Square (Weebly) Subscriber
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.
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.”
Exhibit Fifteen-A: Spreadsheet
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.
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
Exhibit Fifteen-B: Spreadsheet
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.
Exhibit Fifteen-C: Account Dossier
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.
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.
Exhibit Seventeen-A: Stripe, Inc. Spreadsheet
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.
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.
Exhibit Seventeen-B: Stripe, Inc. Spreadsheet
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
Exhibit Eighteen: Text Now, Inc. Mobile Cell Phone Service
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.
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.
Exhibit Twenty: Yahoo! Inc. Account Management Tool, ...