In trial for attempting to coerce a minor to engage in sexual activity, admitting instant message transcripts of between the defendant and undercover detective; the transcript had been cut, pasted and saved as a word processing document and the original communications destroyed after the detective verified the transcript copy matched the original and was not edited; absent a showing of bad faith by the police in destroying the originals, the instant messages were properly authenticated under FRE 901, in United States v. Lanzon, __ F.3d __ (11th Cir. May 4, 2011) (No. 06-20783-CR-JLK)
A buck-shot approach to arguing federal evidence issues on appeal -- such as presenting a multitude of alleged errors of the trial court -- can be a questionable appellate strategy. This is particularly so where the different theories are so interrelated they all seem to stand upon the same trial court action. In some circumstances, it is reasonable to question whether counsel is better served by presenting fewer theories and mining the trial record for every last grain of support one can propose. The Eleventh Circuit of United States v. Lanzon presents what may be an instructive example. Although four theories were articulated on appeal for excluding or qualifying the evidence, they all seemed to fall short because he defendant was unable to provide sufficient showing in the record to lend strong support to the argument.
In the case, defendant Lanzon was arrested after carrying on an extended instant messaging exchange, over the course of several days, with "Tom," an addressee whom the defendant believed was adult. Of particular interest to the defendant was that "Tom" seemed willing to arrange a sexual liaison between the defendant and Tom's 14-year old daughter.
The defendant was convicted after a trial in which the court admitted into evidence a transcript of the instant message exchange between "Tom" and the defendant. This also revealed that "Tom" was an undercover detective. Part of defendant's trial strategy was to challenge admission of the instant message transcripts. The defendant contended that the original files of the transcripts, rather than copies should have been admitted. In the absence of the original files, the defendant argued he was entitled to a spoliation instruction, giving the defendant the benefit of the presumption that the instant message exchange was not as purported to be in the admitted transcript.
Defendant's text messaging of "Tom" was rather extensive. In the exchanges, the defendant and detective spent 30 minutes discussing the defendant having sexual relations with a 14-year old, a follow up text conversation to arrange a time and place for the defendant to meet with "Tom." Finally, a voice call was made just before the arranged meeting to settle the details to ensure that the communicants could recognize each other.
The officer who played the role of "Tom" in the investigation preserved his exchanges with the defendant. To preserve it he "cop[ied] the instant message communications and past[ed] them into a Microsoft Word document. He then saved the Word document to a floppy disc, where the conversations could be printed in hard copy form as transcripts. Detective Clifton did not save any of the instant message conversations in their original format to his computer's hard drive, but he compared the actual instant message “chat screens” to the word processing document he had created to ensure that they exactly matched and that he had accurately recorded the conversations in their entirety." Lanzon, __ F.3d at __.
In the trial, defense counsel tried a four-tiered approach to exclude or moderate the transcript's impact regarding the instant messaging between the detective and "Tom." First, he charged that the detective not retaining the "original" was spoliation, which entitled the defendant to having the instant message transcripts excluded or, at the very least, to a jury instruction permitting "an adverse inference" to be drawn from the detective's destruction of the original. Second, the defendant claimed the trial court admitted the instant message transcripts without proper authentication under FRE 901, again resulting in exclusion of this evidence. Third, the defendant contended that the use of the transcripts violated the best evidence rules of FRE 1001-1004. Finally, the defendant argued that the trial court erred in admitting only part of the transcript, rather than the full transcript, robbing the jury of the context of the statements. The defendant argued that admission of the transcript excerpts would violate the FRE 106 "rule of completeness," as the court failed to admit the "entire chat transcript, and included only the edited portion that supported" the prosecution's case. The Eleventh Circuit rejected each of these theories in turn.
With regard to spoliation, the circuit found that the defendant failed to provide any supporting evidence of spoliation, except for the fact that the original was destroyed. In contrast to a mere charge, the detective testified that he preserved the conversation using the "standard method" he learned at the police department and that, after comparing the actual instant message “chat screens” to the word processing document he had created, he satisfied himse;f that the original and the transcript exactly matched and that he had accurately recorded the conversations in their entirety. He testified that his preservation method was intended to conserve hard drive memory, as well as that he used particular methods for saving the "conversations in their entirety without any editing, and he was found to be credible. Lanzon offered no evidence showing that the transcripts were edited or altered." Lanzon, __ F.3d __. Even if few facts supported the spoliation contention, the circuit noted that the spoliation doctrine normally applied to civil cases. In any event, the doctrine was inapplicable in the absence of any finding of bad faith committed by the alleged spoliator.
The circuit seemed equally unimpressed with the defendant's second justification for exclusion, a lack of authentication. According to the circuit, at trial the detective:
testified that he participated in the online chats and the transcripts were accurate copies of those conversations. His testimony was sufficient “competent evidence” to authenticate the transcripts. We have held that transcripts were properly admitted even when a person who was involved with creating them testified about their authenticity and more steps were involved in their creation than there were in the present case.Lanzon, __ F.3d __ (citing United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000), cert. denied, 533 U.S. 940 (2001); United States v. Caldwell, 776 F.2d 989, 1002 (11th Cir. 1985); United States v. Puentes, 50 F.3d 1567, 1577 (11th Cir. 1995) (“The inspector testified that he heard every conversation that was contained in the transcripts; that the conversations were then written out in longhand; that the longhand transcription was then compared to the recorded conversation; and, finally, that the longhand transcript was then dictated to a secretary and the typewritten product compared to the longhand transcription.”)).
The defendant's arguments that admission of the transcript violated the best evidence rule of the FRE was quickly rejected because like the defendant's argument regarding spoliation, there was no evidence the defendant produced to show "bad faith". According to the circuit the transcripts were admissible, "under Rule 1004 because they contain evidence of the conversations and the originals were not destroyed in bad faith. It is therefore immaterial whether the transcripts are duplicates within the meaning of the rules. Lanzon, __ F.3d __. Rather, the circuit observed, the defendant's argument on this point was that:
[T]he transcripts violated the best evidence rules in FRE 1001–1004 because the originals were destroyed by Detective Clifton in bad faith and the transcripts were not the equivalent of photocopies. The best evidence rule requires the proponent to produce the original to prove the contents of a writing, recording, or photograph. An original is not required if it is lost or destroyed, except when lost or destroyed through bad faith, or if it is otherwise unobtainable. FRE 1004(1)–(2). A duplicate is admissible to the same extent as an original, “unless (1) a genuine question is raised as to the authenticity of the original, or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” FRE 1003. A “duplicate” includes a “counterpart produced by the same impression as the original ... or by mechanical or electronic re-recording ... or by other equivalent techniques which accurately reproduces the original.” FRE 1001(4).Lanzon, __ F.3d __ (citing FRE 1001-04; United States v. Howard, 953 F.2d 610, 612 n. 1 (11th Cir. 1992)).
Rule of Completeness
On his fourth theory - that the full transcript should have been admitted instead of selected portions, it was clear that the defendant clearly struck out:
Lanzon argues the admission of the transcripts violated the rule of completeness in FRE 106 because Detective Clifton failed to include the entire chat transcript, and included only the edited portion that supported his case. The rule of completeness provides that when “a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” FRE 106. FRE 106 “does not automatically make the entire document admissible.” Rather, “[i]t is consistently held that the rule permits introduction only of additional material that is relevant and is necessary to qualify, explain, or place into context the portion already introduced.”Lanzon, __ F.3d __ (citing FRE 1006, States v. Simms, 385 F.3d 1347, 1359 (11th Cir. 2004). As the defendant had explaind what possibly could be placed into context by the rest of the transcript, this argument also failed.
All four theories to justify exclusion or limitation of the transcript failed on appeal. All failed for basically the same reason - that the defendant was unable to produce facts from the record that supported its contentions. Of course, it is difficult to judge, without access to the record on appeal, whether it was better to use a multiplicity of theories when the record below seems weak. Or is it better to select only one or two resonant arguments and intensively mine the record for any arguable support it may have from that record?