Federal Evidence Review

Fifth Circuit reverses child pornography distribution count of conviction for failure to authenticate printout of uploaded images and report listing filenames of the images, in United States v. Baker, 538 F.3d 324 (5th Cir. July 30, 2008) (No. 06-40757)

A recent child pornography case emphasizes the importance of authenticating images transferred or uploaded over the Internet and the consequences of failing to do so.

As required under a federal child pornography reporting statute, the Internet Service Provider Yahoo! reported to the National Center for Missing and Exploited Children (NCMEC) that an e-mail account was used to upload forty-six images of child pornography to a group Web site. NCMEC then reported the matter to law enforcement, which was required under the same federal law. See 42 U.S.C. § 13032 (reporting of child pornography by electronic communication service providers). After an investigation identifying the user of the Yahoo! account, a search warrant was executed at defendant Baker’s residence and his employer voluntarily provided his work computer and numerous diskettes from his office. Hundreds of child pornography images were identified. The defendant was charged with possessing, receiving, and distributing child pornography.

Two NCMEC exhibits were introduced at trial. One exhibit was a binder containing printouts of the “forty-six images identified by filename in the full NCMEC report and stored in electronic format on a disc that accompanied that report.” The forty-six images provided the basis for the count for distributing child pornography. The second exhibit was a NCMEC report for law enforcement which listed the filenames of forty-six images. The defendant did not object to the admission of the images but did object to the report for lack of foundation.

After the defendant was convicted, on appeal the admission of the images was reviewed for plain error (since no objection had been made at trial) and the report under the abuse of discretion standard. The circuit concluded that the government failed to connect the forty-six images in the exhibit to the defendant and his Yahoo! Account. A custodian from Yahoo! testified about the initial referral and identification of the e-mail and IP address but not about the images in the exhibit. Additionally, the government failed to provide a foundation to admit the report listing the filenames of the images. While the investigator identified the two exhibits, the circuit noted that “[n]o other witness or document in evidence vouches for the source, accuracy, or circumstances surrounding preparation of” the report or printout of images. The government did not show that the report was self-authenticating under FRE 902. The trial court therefore erred in admitting the report since it “was the only evidence showing that Baker uploaded child pornography to the Internet”. The exhibit containing the uploaded child pornography images “taken out of context from the full NCMEC report, presented no evidence that Baker distributed pornographic files.” Baker, 538 F.3d at 332.

The admission of the printout of the forty-six images was plain error. See United States v. Olano, 507 U.S. 725, 732-35 (1993) (establishing four-part test to show plain error: error is plain, affects substantial rights, and affects the fairness, integrity or public reputation of judicial proceedings). The image printouts in the exhibit were the sole source of the images at trial. No witness was offered with personal knowledge that these were the uploaded images. While the government contended that twelve of the forty-six images were also found on the defendant’s home computer, there was “no evidence shows that Baker uploaded these images to the Yahoo Web site as opposed to downloading them from that or some other Internet source.” Baker, 538 F.3d at 332. The count for distributing child pornography was reversed. Other convictions for receiving and possessing child pornography based on other evidence were affirmed.

While the government introduced witnesses at trial concerning the investigation, including a Yahoo! custodian and investigators, no witness was able to authenticate the child pornography images. Given the increasing importance of electronic evidence in civil and criminal cases, the Federal Evidence Blog will note key cases as part of a continuing series focusing on electronic evidence or Internet evidence.