Computer User Name, Authored Files and Manufacturer’s Inscription Was Not Hearsay Evidence

Eighth Circuit reviews challenge to testimony that the defendant’s computer equipment showing the defendant was the user, certain files were authored by him, and the place of manufacture based on the inscriptions on the manufacturer labels; since the evidence was offered for a non-hearsay purpose, it was properly admitted, in United States v. Koch, 625 F.3d 470 (8th Cir. Nov. 17, 2010) (No. 10-1789)

Computer-related evidence and records becomes increasingly more important as more data is stored on computers. In child pornography cases, computers are often the instrumentality for committing the offense. In a recent case, the Eighth Circuit considered the admissibility of evidence concerning the user of the computer equipment, the author of the files based on a forensic examination, and information concerning the place of manufacture.

In the case, during a state investigation concerning unlawful gambling involving the use of computers, a search warrant was executed at defendant Koch’s residence. State officials seized the defendant’s computer and flash drive. The defendant pled guilty to a state gambling offense. Upon the conclusion of the case, the agent obtained an order to dispose of the computer evidence. The state “decided to retain certain evidence for training purposes, to destroy some, and to return any personal items to Koch provided that they did not contain any records or materials related to his illegal gambling operation.” Koch, 625 F.3d at 474. Upon opening the flash drive for the first time in the case, suspected child pornography images were observed. The matter was reported to the Internet Crimes against Children (ICAC) Division, which obtained a new search warrant. Further forensic examination identified “over 100 separate images of child pornography on both devices.” The defendant was charged with one count of possession of child pornography. At a bench trial, a forensic examiner testified:

that the user names on both the flash drive and the computer were variants of Koch’s first name. The flash drive user was identified as “Jonathon” and the computer user as “Jo”. Both devices also contained numerous documents authored by Koch for college courses and other subjects, as well as digital photographs of him. A number of these files were created within days of the dates the pornographic images had been saved, moved, or deleted on the respective devices.

Koch, 625 F.3d at 475. The agent also testified about the manufacturer’s inscription on a product (that the defendant’s “computer and flash drive were each labeled as having been manufactured in China”). The trial court denied the defense objection to this evidence after concluding that it was not being admitted for a hearsay purpose. After the defendant was convicted, and sentenced to 78 months. On appeal, he challenged the examiner’s testimony as inadmissible hearsay. See FRE 801© (defining hearsay); FRE 802 (hearsay rule).

The Eighth Circuit affirmed the admission of the challenged testimony and the defendant’s conviction and sentence. None of the challenge evidence constituted hearsay. The circuit concluded that “the documents authored by ‘Jonathon Koch’ found on both the computer and flash drive, as well as the user names ‘Jo’ and ‘Jonathon’” were properly admitted “as circumstantial evidence associating Koch with the computer and flash drive.” The ruling was supported by other Eighth Circuit precedent. See Koch, 625 F.3d at 480 (citing United States v. Bradford, 246 F.3d 1107, 1117-18 (8th Cir. 2001) (“names and telephone numbers” in an address book were offered as circumstantial evidence to show the relationship between the defendants); United States v. Franks, 939 F.2d 600, 601-02 (8th Cir. 1991) (defendant’s signature on airmail package was admissible to connect her to the delivery address, that “the packages were received at her address by someone who signed her name”)).

With regard to the manufacture inscription labels evidence, the government was required to show that the defendant “knowingly possessed an item of child pornography which was transported or produced using materials transported in interstate commerce.” Koch, 625 F.3d at 478. The circuit noted that it had “previously rejected the claim that a manufacturer’s inscription on a product is inadmissible hearsay.” Koch, 625 F.3d at 480 (citing United States v. Bowling, 32 F.3d 326, 328 (8th Cir. 1994) (testimony about a manufacturer’s name stamped on a firearm admitted as non-hearsay to prove interstate commerce element; “A name, as opposed to a statement as to what someone’s name is, is not a statement of fact, and therefore it was not admitted for the truth of the matter asserted.”)). While this precedent supported the admission of this evidence, the circuit suggested that “the better practice may be to prove the place of manufacture through a business record,” under FRE 803(6).

The Koch case highlights how some of the names and inscriptions on computer evidence may be admissible at trial for non-hearsay purposes, specifically as circumstantial evidence to connect the party or circumstantial evidence of origin.


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