Federal Evidence Review

Cut and pasted chat and e-mail communications authenticated by an informant and agent, in United States v. Gagliardi, 506 F.3d 140 (2nd Cir. 2007)

As part of a continuing series concerning Internet and Electronic Evidence, we noted on October 9 a case (Jackson) in which Internet chat conversations, which were cut and pasted, were excluded because the government was unable to authenticate the chat conversations. Another similar case, in which cut and pasted chat conversations were authenticated, highlights the contours of this issue. Both cases involved nearly identical investigations.

In Gagliardi, the defendant, a sixty-two year old man, sent an instant message to “Lorie,” using the screen name “Teen2HoT4u,” in an Internet chat room. He did not realize that he was communicating with a private citizen informant who was aiding the FBI in identifying child predators. After he offered to pay for sex, “Lorie” said she was scared and referred him to her thirteen year old friend, “Julie,” who was actually an FBI agent. After several communications, he was arrested when he arrived at the meeting place. At trial, he argued the government failed to authenticate the chat and e-mail communications because they “were largely cut from his electronic communications and then pasted into word processing files, they were not originals and could have been subject to editing by the government” and “could even have been completely fabricated.” Gagliardi, 506 F.3d at 151. The defendant was convicted for attempting to entice, induce, or persuade a minor to engage in illegal sexual activity, and sentenced to the mandatory minimum term of sixty months.

On appeal, the Second Circuit affirmed the admission of e-mails and transcripts of the instant message chats conversations. The circuit noted that “[t]he bar for authentication of evidence is not particularly high.” Gagliardi, 506 F.3d at 151 (citing United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir. 2001) (noting FRE 901 “does not erect a particularly high hurdle,” and that hurdle may be cleared by “circumstantial evidence.”). The circuit noted the testimony of the informant and agent was sufficient to authenticate the emails and chat conversations. As the circuit concluded, “a reasonable juror could have found that the exhibits did represent those conversations, notwithstanding that the e-mails and online chats were editable.” Gagliardi, 506 F.3d at 151.

So how does the Gagliardi case compare with Jackson in which the cut and paste communications were excluded since the government could not authenticate them? Both cases involved defendants engaged in online communications with persons they thought were young girls but were actually investigators.

In Jackson, the defense effectively cast doubt concerning the trustworthiness of the cut and pasted chat conversations. No original printout was available. The officer’s computer containing the original chat conversations had been wiped during a routine computer upgrade. A defense expert testified that there were alternative means to preserve the original communications which were not used. The offered transcript contained edits and alterations. On this record, the government failed to meet its burden, as the proponent, to show the cut and pasted document that remained was an accurate record of the conversations.