Case 3:18-cr-04683-GPC Document 428 Filed 05/18/22 PageID.6548 Page 1 of 9
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`RANDY S. GROSSMAN
`United States Attorney
`MELANIE K. PIERSON
`SABRINA L. FEVE
`Assistant U.S. Attorneys
`California Bar No. 112520/226590
`Office of the U.S. Attorney
`880 Front Street, Room 6293
`San Diego, CA 92101
`Tel: (619) 546-7976
`Fax: (619) 546-0631
`Email:Melanie.Pierson@usdoj.gov/Sabrina.Feve@usdoj.gov
`
`CANDINA S. HEATH
`Senior Counsel
`Texas Bar No. 09347450
`Computer Crime and Intellectual Property Section
`U.S. Department of Justice
`Washington, D.C. 20005
`Tel: (202) 307-1049
`Email: Candina.Heath2@usdoj.gov
`
`Attorneys for Plaintiff
`United States of America
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`UNITED STATES OF AMERICA,
`Case No.: 18cr4683-GPC
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`GOVERNMENT’S
`
`Plaintiff,
`SUPPLEMENTAL BRIEFING RE
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`AUTHENTICTION PURSUANT
`v.
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`TO FED. R. EVID. 902(11) & (13)
`
`JACOB BYCHAK (1),
`MARK MANOOGIAN (2),
`ABDUL MOHAMMED QAYYUM (3), and
`PETR PACAS (4),
`
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`Defendants.
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`
`COMES NOW the plaintiff, United States of America, by and through its counsel,
`Randy S. Grossman, United States Attorney, and Assistant United States Attorneys
`Melanie K. Pierson, Sabrina L. Fève, and Computer Crime and Intellectual Property
`Section Senior Counsel Candy Heath, and hereby files its above-referenced Supplemental
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`Case 3:18-cr-04683-GPC Document 428 Filed 05/18/22 PageID.6549 Page 2 of 9
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`Briefing Regarding Authentication Pursuant to Fed. R. Evid. 902(11) and (13), based on
`the files and records of the case.
`I.
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`STATEMENT OF RELEVANT FACTS
`On March 18, 2022, the United States filed notice of its intent to authenticate
`business and electronic evidence, pursuant to Fed. R. Evid. 902(11) and 902 (13). [ECF
`347.] The records in questions were provided to the defense for inspection and copying,
`and were disclosed in electronic form, along with the certificates of authenticity (“COAs”
`or “certificates”). In a footnote to their Rule 404(b) in limine motion, the defense stated
`that the defendants “do not consent to the admissibility or relevance of the certifications,”
`but provided no further explanation. [ECF 360-1, p. 2, fn. 1].
`On April 29, 2022, the government filed its Amended Notice of Intent to
`Authenticate Evidence,1 providing copies of the individual certificates of authenticity and
`identifying the exact trial exhibits by exhibit number sought to be authenticated. The
`Amended Notice identified over 700 exhibits, which matched the exhibit numbers
`identified on the Government’s Exhibit List, filed on April 25, 2022 [ECF 395], which
`identified the exhibits themselves by description and bates number. As the government has
`stated repeatedly throughout these proceedings, virtually all its trial exhibits were obtained
`by means of a subpoena for records, and were provided in electronic format.
`On May 5, 2022, the defense received copies of the government’s marked exhibits,
`with an amended exhibit list highlighting any changes. On May 6, 2022, the government
`filed its Amended Exhibit list [ECF 405]. Twenty-three of the 700-odd exhibits had to be
`renumbered when it was discovered that those exhibit numbers had already been used
`during the witness depositions. On May 6, 2022, at the hearing on the parties’ motions in
`limine, the court deferred ruling on the Fed. R. Evid. 902(11) matters to May 12, 2022.
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`1 One supplemental document and accompanying Certificate of Authorization was filed
`on May 5, 2022.
`Government’s Supplemental Briefing Re:
`Authenticate under Fed. R. Evid. 902(11) & (13)
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`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 428 Filed 05/18/22 PageID.6550 Page 3 of 9
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`[ECF 406.] On May 9, 2022, the government provided the defense with a spreadsheet
`explaining the renumbering of the 23 mis-numbered exhibits.
`Since the government’s March 29, 2022, filing of its notice of intent to authenticate
`documents pursuant to Fed. R. Evid. 902(11) and (13), the government has repeatedly
`asked defense counsel if they could agree that any of the requested documents could
`properly be authenticated with the proffered certificates of authenticity, including via email
`on April 22, 2022, and May 12, 2022. The defense did not respond to either email until the
`evening of May 17, 2022, when an attorney for one of the four defendants indicated that
`her defendant would not challenge the COAs for three of the 20 certificates identified by
`the government. The attorney indicated they were willing to accept the COAs from Telic,
`the State of Delaware, and the State of Louisiana. Defense counsel’s email did not identify
`any specific defects in the remaining 17 COAs, but just indicated they were rejecting them.
`Another defense counsel indicated that her client might agree to the authenticity of two or
`three other sets of records. There was no agreement by all four defendants to any of the
`requests.
`Mario Samonte, the records custodian for Company A, previously testified that he
`began working at one of the predecessor companies to Company A in 2006 as the systems
`administrator. Samonte, who has a college degree in computers, held the position of system
`administrator through at least 2018. According to Samonte, as the systems administrator,
`he was responsible for helping people with their IT needs and keeping the servers up and
`running. Samonte said he “was in charge of all IT needs for all the employees.” Samonte
`explained that as the company grew to have 100 employees, he eventually supervised a
`team of five people, but he remained “the main guy” for supporting the email platform.
`According to Samonte, he “would be the single person to support all of them [the
`employees], on top of the email platform that I’m supporting.” When the firm became a
`global company after being acquired by Company A, Samonte took “more of a systems
`and engineering role” while still maintaining the email platform needed for mailing.
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`Government’s Supplemental Briefing Re:
`Authenticate under Fed. R. Evid. 902(11) & (13)
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`3
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`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 428 Filed 05/18/22 PageID.6551 Page 4 of 9
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`THE EXHIBITS ARE PROPERLY AUTHENTICATED BY CERTIFICATES.
`Fed. R. Evid. 902(11) provides that business records certified to meet the
`requirements of Fed. R. Evid. 803(6)(A) – (C) are “self-authenticating” and “require no
`extrinsic evidence of authenticity in order to be admitted.” Fed. R. Evid. 803(6)(A)-(C)
`requires attestation that: “(A) the record was made at or near the time by-or from
`information transmitted by-someone with knowledge, (B) the record was kept in the course
`of a regularly conducted activity of a business, organization, occupation, or calling,
`whether or not for profit, [and] (C) making the record was a regular practice of that
`activity.” Making reference to Fed. R. Evid. 803(6), the Advisory Committee Notes explain
`that Fed. R. Evid. 902(11) “sets forth a procedure by which parties can authenticate certain
`records of regularly conducted activity, other than through the testimony of a foundation
`witness.” See Fed. R. Evid. 902(11), Advisory Committee’s Note. Additionally, the
`Advisory Committee Notes to the 2000 Amendments to Rule 803, explain that Rule
`902(11) “provides that the foundation requirements of Rule 803(6) can be satisfied under
`certain circumstances without the expense and inconvenience of producing time-
`consuming foundation witnesses.” Fed. R. Evid. 803(6), Advisory Committee’s Note.
`Simply stated, the government seeks the application of Fed. R. Evid. to authenticate records
`from Amobee, Enom, CPH Resources, Name.com, PayPal, GoDaddy, GetAds, Hostwinds,
`Telic, Cogent, Mata Group, ARIN, Moniker, the Goodman Law Firm, and Broadcloud, via
`a COA signed by an authorized custodian of records for each entity. Such authentication,
`as prescribed for by the Fed. R. Evid., will eliminate the need for a custodian of records for
`each entity to travel to San Diego to appear in court simply to testify to the same statements
`set out in the COS, that the records are authentic records of his or her entity.
`A. A Minimal Threshold is Required to Authenticate Evidence.
`In general, a “proponent must produce evidence sufficient to support a finding that
`the item is what the proponent claims it is.” Fed. R. Evid. 901(a). To support such a finding,
`the proponent “need only make a prima facie showing of authenticity” and “establish a
`connection between the proffered evidence and the defendant.” United States v. Tank, 200
`4
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`Government’s Supplemental Briefing Re:
`Authenticate under Fed. R. Evid. 902(11) & (13)
`
`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 428 Filed 05/18/22 PageID.6552 Page 5 of 9
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`F.3d 627, 630 (9th Cir. 2000). Disputes over authentication should be about whether it is
`reasonably likely that the evidence is what the proponent says (e.g., a Company A email),
`not over the evidence’s probative value. The courts can therefore properly “admit[]
`evidence that meets the minimum requirements for authentication under the Federal Rules
`of Evidence” and let opposing counsel “argue that the jury should give the evidence
`minimal weight.” United States v. Ortiz, 776 F.3d 1042, 1045 (9th Cir. 2015).
`B. The Defendants Have No Right to Confront the Record Custodians.
`The Ninth Circuit, following the Tenth Circuit2 and the Seventh Circuit3, has
`squarely held that admission of records based on COAs from custodians of records without
`the testimony of a live witness does not violate a defendant’s Sixth Amendment right to
`confront a witness. United States v. Anekwu, 695 F. 3d 967, 974 (9th Cir. 2012). Anekwu
`held that the COAs were non-testimonial because the certificates did not interpret what the
`records contain or certify their substance or effect, or otherwise create a record for the sole
`purpose of providing evidence against a defendant. As such, the use of the COAs was found
`to be consistent with the Supreme Court’s holding in Crawford v. Washington, 541 U.S.
`36, 51–52 (2004).
`C. The Defendants May Challenge the Sufficiency of the Certification.
`Even though no witnesses need testify and no cross examination need occur, the
`defendants may still challenge the authenticity of the evidence and the sufficiency of the
`certifications through the mechanism of a hearing pursuant to Fed. R. Evid. 104. United
`States v. Kahre, 610 F. Supp. 2d 1261, 1265 (D. Nev. 2009). This procedure requires the
`government to provide notice of the documents it seeks to authenticate, and copies of the
`certificates upon which it relies for authenticity. The defense is then free to challenge the
`sufficiency of certificates at the hearing. Assuming the court finds the certifications to be
`sufficient, the records are deemed authenticated. The issue of admissibility is separate and
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`2 United States v. Yeley–Davis, 632 F.3d 673 (10th Cir.), cert. denied, ––– U.S. ––––, 131
`S.Ct. 2172, 179 L.Ed.2d 951 (2011)
`3 United States v. Ellis, 460 F.3d 920, 927 (7th Cir.2006)
`5
`Government’s Supplemental Briefing Re:
`
`Authenticate under Fed. R. Evid. 902(11) & (13)
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`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 428 Filed 05/18/22 PageID.6553 Page 6 of 9
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`distinct, and occurs only after the government meets its burden to prove the documents’
`relevance and the absence of some form of hearsay. Id. If the defendants have questions
`for these records custodian witnesses outside of their role as merely establishing foundation
`for authentication, they are “free to call them at trial before the jury…this procedure
`provides an opportunity to expedite the already-lengthy trial while still maintaining and
`protecting the Defendants' constitutional rights.” Id.
`D. COAs Made By Corporate Successors and Custodians without Personal
`Knowledge Support Authenticity Under 902(11)
`In United States v. Siders, 712 Fed Appx 601 (9th Cir. 2017), the Ninth Circuit
`rejected the defendant’s objections that the Rule 902(11) certifications required the
`custodian of record to have personal knowledge of each document certified. In Sider, the
`loan records were issued by Washington Mutual, while the declaration was provided by a
`records custodian from JPMorgan Chase, the corporate successor to Washington Mutual.
`The court found the COAs to be sufficient under Rule 902(11) because the declaration
`established that the applications were received in the course of loan processing and
`maintained thereafter, and this occurred in the regular course of business. Id. One entity
`may receive and maintain documents in the regular course of business, even if the
`documents were created by third parties. United States v. Childs, 5 F.3d 1328, 1333–34
`(9th Cir. 1993).
`Similarly, “the is no requirement that” the COA indicate “precisely when the
`[document] was” created and an opposing party’s quarrels with the timing, location, or
`other aspects of the document “indicate a lack of trustworthiness . . . address[] the weight
`of the evidence rather than its admissibility.” United States v. Huber, 772 .2d 585, 590-91
`(9th Cir. 1985); see also United States v. Ray, 930 F.2d 1368 (9th Cir. 1990) (“There is no
`requirement that the government establish when and by whom the [business records] were
`prepared”); United States v. Basey, 613 F.2d 198, 201 n.1 (9th Cir. 1979) (records
`custodian did not need to personally record the information or know who did). Because the
`evidence provided by the custodian of records is foundational, the personal knowledge
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`Government’s Supplemental Briefing Re:
`Authenticate under Fed. R. Evid. 902(11) & (13)
`
`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 428 Filed 05/18/22 PageID.6554 Page 7 of 9
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`standard is not applied. See Fed. R. Evid. 104(a); 4 Christopher B. Mueller & Laird C.
`Kirkpatrick, FEDERAL EVIDENCE § 8:78(5)(4th ed.). The custodian of records “needs
`firsthand knowledge about the normal processes of the business, but he need not be
`someone who observed any step in creating the record, and he need not even know exactly
`who participated in the various steps. He may rely largely on a kind of circumstantial
`knowledge, and he even [may] rely partly on what amounts to hearsay—on what he has
`learned by talking to others about record-keeping processes.” Id. Thus, it is proper for a
`records custodian from Company A to authenticate the records Company A maintains that
`were received from predecessor firms, and the proffered Custodian need not have personal
`knowledge of each document.
`Mario Samonte is well qualified to be the custodian of records for the records of
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`Company A, which were all produced electronically. As the systems administrator, who
`was responsible for the IT needs of all the employees of Company A during the relevant
`time frame, Samonte had personal knowledge of the normal processes of the business and
`how the records were created and stored electronically, including by the predecessor firms
`by whom he was employed.
`E. Authentication of Electronic Evidence.
`Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D.Md. 2007) which
`catalogued the myriad ways in which electronic evidence may be authenticated and
`admitted, noted at the time that the most common methods for authenticating email were
`Fed. R. Evid. 902(b)(1) (person with personal knowledge), 901(b)(3) (comparison with
`authenticated exemplar), 901(b)(4) (distinctive characteristics, including circumstantial
`evidence),4 and 902(11) (business records certifications). Id. at 554-55.
`More recently, the courts have relied on Rule 902(11) certifications to authenticate
`email records. See, e.g., United States v. Gal, 606 Fed. Appx. 868, 874-75 (9th Cir. 2015)
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`4 Fed. R. Evid. 901(b)(4) also encompasses the “reply doctrine,” which holds that, once
`an email “is shown to have been mailed, sent or made,” an email “shown by its contents
`to be in reply is authenticated without more.” United States v. Frantz, 2004 WL 5642909,
`n. 25 (C.D. Cal. 2004) (citations omitted).
`Government’s Supplemental Briefing Re:
`Authenticate under Fed. R. Evid. 902(11) & (13)
`
`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 428 Filed 05/18/22 PageID.6555 Page 8 of 9
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`(email properly authenticated under Rule 902(11) and the certification did not violate the
`Confrontation Clause) (citations omitted); United States v. Ayelotan, 917 F.3d 394, 402
`(5th Cir. 2019) (same); United States v. Denton, 944 F.3d 170, 183-84 (4th Cir. 2019)
`(same); United States v. Way, 1:14cr00101-DAD-BAM-1, 2018 WL 2470944, *1-2 (E.D.
`Cal. June 1, 2018).
`Even when the proffered electronic communications are from social media, where
`the courts have been somewhat more conservative regarding the authentication of an
`account’s contents via Rule 902(11), the courts have still been inclined to accept the Rule
`902(11) certification to authenticate records about the content (e.g., metadata showing
`times or dates of transmission or IP addresses) under Rule 901(a) and to hold there was no
`Confrontation Clause issue. See, e.g., United States v. Farrad, 895 F.3d 859, 879-80 (6th
`Cir. 2018); United States v. Browne, 834 F.3d 403, 413-15 (3rd Cir. 2016); United States
`v. Hunt, 534 F.Supp.3d 233, 254-58 (E.D.N.Y. 2021); see also Advisory Committee Notes
`to 901(a) (“significant inroads upon the traditional insistence on authentication and
`identification have been made by accepting as at least prima facie genuine items of the kind
`treated in Rule 902”).
`Other electronic business records, like GoDaddy, Tucows, Name.com, and Enom’s
`domain registration records, are more conventional business records that fall within both
`Fed. R. Evid. 902(11) and 902(13). See, e.g., United States v. Ray, 20cr110 (LJL) 2022
`WL 558146 (S.D.N.Y. Feb. 24, 2022) (GoDaddy records may be authenticated under
`Rule 902(11)); Dienes v. FCA US LLC, 16cv1812-AJB, 2017 WL 11672443 (S.D. Cal.
`Jan. 10, 2017) (business reports properly authenticated under Fed. R. Evid. 902(11)). Fed.
`R. Evid. 902(13) also applies to records created via an electronic process, such as archival
`data that is collected automatically by a website. Western Towboat Co. v. Vigor Marine,
`LLC, 2021 WL 2641521, *4-5 (W.D. Wash. 2021); see also Wright and Miller § 7147.
`The Advisory Committee Notes to the 2017 Amendments that codified Rule 902(13) note
`the shared public policy underlying both Rule 901(11) and 902(13): “As with the
`provisions on business records in Rules 902(11). . ., the Committee has found that the
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`Government’s Supplemental Briefing Re:
`Authenticate under Fed. R. Evid. 902(11) & (13)
`
`18cr4683-GPC
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`Case 3:18-cr-04683-GPC Document 428 Filed 05/18/22 PageID.6556 Page 9 of 9
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`expense and inconvenience of producing a witness to authenticate an item of electronic
`evidence is often unnecessary.”
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` III.
`CONCLUSION
`To avoid delay and wasted time at trial resulting from an appearance by a dozen or
`more custodians of records simply to testify that the documents, are indeed, authentic
`documents from their company, the government requests that the court rule that the records
`can be authenticated by the proffered certificates of authenticity.
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`DATED: May 18, 2022 Respectfully submitted,
`
`RANDY S. GROSSMAN
`United States Attorney
`
`/s/Melanie K. Pierson
`Assistant United States Attorney
`
`/s/Sabrina L. Fève
`Assistant United States Attorney
`
`/s/Candy Heath
`Senior Counsel
`Computer Crime and Intellectual Property Section
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`Government’s Supplemental Briefing Re:
`Authenticate under Fed. R. Evid. 902(11) & (13)
`
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