United States District Court, S.D. Mississippi, Southern Division
ORDER DENYING THE GOVERNMENT'S  NOTICE OF INTENT TO OFFER GMAIL ACCOUNT RECORDS AND MOTION IN LIMINE TO DETERMINE AUTHENTICITY,  NOTICE OF INTENT TO OFFER YAHOO ACCOUNT RECORDS AND MOTION IN LIMINE TO CONFIRM AUTHENTICITY, AND  NOTICE OF INTENT TO OFFER FACEBOOK RECORDS AND MOTION IN LIMINE TO CONFIRM AUTHENTICITY, AND GRANTING THE GOVERNMENT'S  NOTICE OF INTENT TO OFFER FEDEX AND UPS RECORDS AND MOTION IN LIMINE TO CONFIRM AUTHENTICITY
HALIL SULEYMAN OZERDEN, District Judge.
BEFORE THE COURT are the Government's Notice of Intent to Offer Gmail Account Records and Motion in Limine to Determine Authenticity , Notice of Intent to Offer Yahoo Account Records and Motion in Limine to Confirm Authenticity , Notice of Intent to Offer Facebook Records and Motion in Limine to Confirm Authenticity , and Notice of Intent to Offer FedEx and UPS Records and Motion in Limine to Confirm Authenticity . Defendant Rasheed Ali Muhammad has filed a Response to the Government's Notice of Intent to Offer Gmail Account Records and Motion in Limine to Determine Authenticity ,  and the Government has filed a Reply . Having considered the Motions, the record, and relevant legal authorities, the Court is of the opinion that the Government's Notice of Intent to Offer FedEx and UPS Records and Motion in Limine to Confirm Authenticity  should be granted, but that the Government's remaining Motions    should be denied.
On April 22, 2014, Defendant Rasheed Ali Muhammad ("Defendant") was charged with conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846. Indictment 1-2 . Defendant pleaded not guilty to this charge on July 7, 2014. Minute Entry July 7, 2014. A jury trial is currently scheduled to commence Monday, January 5, 2015. Text Only Amended Trial Order Nov. 7, 2014.
The Government has indicated its intention to offer into evidence records purportedly obtained from various email accounts, social media, and shipping companies. In particular, the Government seeks to offer into evidence records obtained from the following Gmail accounts: email@example.com, firstname.lastname@example.org, email@example.com, and firstname.lastname@example.org. Notice of Intent to Offer Gmail Account Records and Mot. in Limine to Determine Authenticity 2 . The Government seeks to offer records obtained from a Yahoo account known as email@example.com, Notice of Intent to Offer Yahoo Account Records and Mot. in Limine to Confirm Authenticity 2 , and Facebook account records from an account purportedly maintained by Defendant Roslyn Chapman,  Notice of Intent to Offer Facebook Records and Mot. in Limine to Confirm Authenticity 2 . The Government further seeks to offer evidence in the form of shipping records obtained from Federal Express ("FedEx") and United Parcel Service ("UPS"). Notice of Intent to Offer FedEx and UPS Records and Mot. in Limine to Confirm Authenticity 2 . The Government attaches to each Motion     a certification of a records custodian purporting to establish the authenticity of each set of these records.
In each Motion    , the Government requests a pretrial ruling from the Court regarding the admissibility of the certified records "to save burdensome witness travel and expenses." See, e.g., Notice of Intent to Offer Gmail Account Records and Mot. in Limine to Determine Authenticity 3 . The Government appears to contend that the relevance of these records will become readily apparent once the records are authenticated. See, e.g., id. at 3-4 ("If the relevance of these records is not apparent from the indictment and the offenses charged therein, the Government respectfully requests in the alternative that the certified records be admitted conditionally pursuant to Federal Rule of Evidence 104(b).") Although it seeks to offer these records into evidence, the Government states it will not seek to introduce the records custodian certifications accompanying each set of records. Supplemental Mem. in Supp. of Mot. in Limine to Determine Authenticity of Gmail Records 3 .
In Response, Defendant contests the authenticity of the documents the Government intends to offer into evidence. Def.'s Resp. to Government's Notice of Intent to Offer Gmail Account Records and Mot. in Limine to Determine Authenticity 2 . Defendant also questions the completeness of the documents at issue. Id. at 4-5.
A. Legal Standard
"The Sixth Amendment's Confrontation Clause provides that, [i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.'" Crawford v. Washington, 541 U.S. 36, 42 (2004) (quoting U.S. Const. amend. VI). The Supreme Court has made clear that "the Sixth Amendment demands... unavailability and a prior opportunity for cross-examination" when "testimonial" evidence is offered. Id. at 68. While declining "to spell out a comprehensive definition of testimonial[, ]'" the Supreme Court has stated that business records were not historically considered testimonial. Id. at 56. The Fifth Circuit Court of Appeals has relied upon Crawford to conclude "business records are not testimonial in nature and their admission at trial is not a violation of the Confrontation Clause." United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007).
Subsequent to Crawford and Morgan, the Supreme Court decided Melendez-Diaz v. Massachusetts, in which the Court clarified that "[b]usiness... records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because-having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial-they are not testimonial." 557 U.S. 305, 324 (2009). More recently, the Supreme Court has explained that "[a] document created solely for an evidentiary purpose, '... made in aid of a police investigation, ranks as testimonial." Bullcoming v. New Mexico, 131 S.Ct. 2705, 2717 (2011) (citing Melendez-Diaz, 557 U.S. at 311).
In addition to Defendant's Sixth Amendment right to confront the witnesses against him, the fact that Defendant has contested the authenticity of the records produced by Google, Facebook, and Yahoo also bears importance. Although the Federal Rules of Evidence provide that evidence may be self-authenticating, "[i]n no instance is the opposite party foreclosed from disputing authenticity." Fed.R.Evid. 902, Advisory Committee Notes. "When a defendant questions the authenticity of evidence, the district court must determine whether the government has made a prima facie showing of authenticity.'" United States v. Smith, 481 F.3d 259, 265 (5th Cir. 2007) (quoting United States v. Sparks, 2 F.3d 574, 582 (5th Cir. 1993)). "This prima facie ...