Friday, November 08, 2013

Fraud, Text Messages and Authentication

“On or about March 31, 2011,” Promise Mebrtatu “was charged in a 38-count Indictment. . . . with one count of conspiracy in violation of 18 U.S. Code § 371, six counts of bank fraud and aiding and abetting in violation of 18 U.S. Code §§ 1344 and 2, and 31 counts of aggravated identity theft and aiding and abetting in violation of 18 U.S. Code §§ 1028A and 2.”  Opening Brief for Appellant, U.S. v. Mebrtatu, 2013 WL 1305481 (U.S. Court of Appeals for the 3d Circuit 2013).   

After the U.S. District Court judge who had the case denied her motion to suppress (which we will come back to), Promise Mebrtatu went to trial.  Opening Brief for Appellant, U.S. v. Mebrtatu, supra. 

The judge dismissed counts 7, 26 and 27; the jury convicted Mebrtatu “ of counts one, two through six, eight through 20, 24-25, 28-34, and 36-38” and found her not guilty “of counts 21-23, and 35.” Opening Brief for Appellant, U.S. v. Mebrtatu, supra.  After she was convicted, the District Court judge “sentenced Mebrtatu to a total of 78 months imprisonment.” U.S. v. Goode, 2013 WL 5814134 (U.S. Court of Appeals 2013). 

Mebrtatu appealed, claiming the District Court judge erred (i) in denying her “motion to suppress physical evidence obtained during a vehicle search” and (ii) in denying her  “motion in limine to exclude text messages retrieved from a cellular phone found on her person.”  U.S. v. Mebrtatu, 2013 WL 5814139 (U.S. Court of Appeals for the 3d Circuit 2013).  In a prior ruling in this case, the Court of Appeals explained how the case arose:

On March 31, 2011, a grand jury in the Eastern District of Pennsylvania returned an indictment charging Markcus Goode and three other individuals with participating in a conspiracy to commit bank fraud and aggravated identity theft and with substantive acts of bank fraud and aggravated identity theft. Before trial, Goode, along with codefendants Promise Mebrtatu and Milan Douglas, filed a motion to suppress physical evidence seized during Vermont state troopers' search of the rental car in which they were traveling.

Goode's niece, Charmaine Mitchell, rented the car in question from Dollar Rental Car, and Goode was driving the car when it was stopped and searched. Promise Mebrtatu, Milan Douglas, and Jessica Randolph were passengers in the car at the time. Neither Goode's name nor any of the passengers' names were listed on the rental agreement.

During the car search, the officers recovered several items related to bank fraud and identity theft, including checkbooks in different names and an envelope containing photocopies of processed checks. The photocopied checks were wrapped around Pennsylvania driver's licenses, and, while the names on the Pennsylvania licenses matched those on the photocopied checks, the license photos were all of Jessica Randolph.

Vermont law enforcement also found containers of Krazy Glue, a box of disposable medical gloves, and a bottle of isopropyl alcohol, materials that can be used to produce fraudulent identification cards.

U.S. v. Goode, supra.  The news story you can find here provides a little more information about the facts in the case.

The District Court judge held a hearing on Mebrtatu’s motion to suppress and during that hearing “Vermont State Trooper Christopher Lora, the primary law enforcement officer involved in the vehicle stop, testified about the stop and the ensuing events”, as outlined above. U.S. v. Goode, supra.  

The District Court subsequently denied the motion to suppress in a written opinion. In pertinent part, the Court held that ‘Defendants all lack standing to challenge the search of this rental car because none of them was listed on the rental agreement as an authorized driver.’ . . . Additionally, the District Court held that the car search followed Goode's voluntarily and freely given consent and that there was probable cause to conduct the search.

U.S. v. Goode, supra.  

On appeal, Mebrtatu argued that the District Court judge erred in denying her motion because “the traffic stop that resulted in this vehicle search was unduly prolonged and constituted an unlawful detention.” U.S. v. Goode, supra.   Here, Mebrtatu is arguing that while the traffic stop may have been “reasonable” at the beginning, it lasted too long and expanded to cover non-traffic issues and therefore constituted a “seizure” that violated the 4th Amendment.  As Wikipedia explains,

a person is seized within the meaning of the 4th Amendment only when, by means of physical force or show of authority, his freedom of movement is restrained and, in the circumstances surrounding the incident, a reasonable person would believe that he was not free to leave.

And as this site explains, to comport with the 4th Amendment, a traffic stop must be “reasonable” both in scope and duration, which means the officer can legitimately stop the vehicle and take whatever efforts are necessary to carry out the purpose of the stop, e.g., issue a ticket, etc.  Here, the Court of Appeals rejected Mebrtatu’s argument that this encounter exceeded the legitimate scope of a traffic stop:

We disagree with Mebrtatu's contention. A traffic stop “ordinarily continues, and remains reasonable, for the duration of the stop.” Arizona v. Johnson, 555 U.S. 323 (2009). Moreover, an officer is permitted to ask questions even if they are unrelated to the purposes of the stop. See id. (`An officer's inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.’).

Because Mebrtatu has not presented evidence demonstrating that Trooper Lora unduly prolonged the stop, we hold that the stop did not constitute an unlawful detention.

U.S. v. Goode, supra.  

The Court of Appeals also agreed with the District Court judge that Mebrtatu and her

codefendants lack standing to challenge the search of the rental car because they were not listed on the rental agreement as authorized drivers. `Standing to challenge a search requires that the individual challenging the search have a reasonable expectation of privacy in the property searched.’ U.S. v. Baker, 221 F.3d 433 (U.S. Court of Appeals for the 3d Circuit 2000) (citing Rakas v.Illinois, 439 U.S. 128 (1978)).

As we held in U.S. v. Kennedy, `the driver of a rental car who has been lent the car by the renter, but who is not listed on the rental agreement as an authorized driver, lacks a legitimate expectation of privacy in the car unless there exist extraordinary circumstances suggesting an expectation of privacy.’ U.S. v. Kennedy, 638 F.3d 159 (U.S. Court of Appeals for the 3d Circuit 2011).

Mebrtatu argues that this case is distinguishable from Kennedy.  In In Kennedy, we concluded that the defendant, who was not listed on the rental agreement, lacked standing to challenge the search of a vehicle rented by his girlfriend  . . . According to Mebrtatu, the instant case presents extraordinary circumstances giving rise to a legitimate expectation of privacy because Goode specifically asked Mitchell to rent the car on his behalf and for his use.

We disagree. This case raises the identical issue presented in Kennedy, namely `whether someone who has been given permission to drive a vehicle by its renter, without the knowledge of its owner and in contravention of the rental agreement, nevertheless has standing to challenge a search of that vehicle.’ U.S. v. Kennedy, supra.

As in Kennedy, `[a]lthough [the driver] had the permission of the renter to operate the vehicle, he did not have the permission of the owner. . . . [A]ny expectation of privacy he subjectively held in the vehicle was therefore objectively unreasonable.’ U.S. v. Kennedy, supra. (emphasis added). Because Dollar Rental Car only authorized Mitchell to drive the car, none of the defendants, including Mebrtatu, had standing to challenge the search of the car. Accordingly, we affirm the District Court's denial of the motion to suppress.

U.S. v. Goode, supra.  

The Court of Appeals then took up Mebrtatu’s argument that

the District Court erred in denying her motion in limine to exclude text messages found on the seized cellular phone. In particular, Mebrtatu asserts that the government did not have sufficient evidence to authenticate the messages and attribute them to her.

U.S. v. Goode, supra.  As Wikipedia explains, a motion in limine is a motion filed with a judge in a civil or criminal case that asks “that the judge rule certain testimony regarding evidence or information may be included or excluded.”  It is basically a way of asking the judge to rule on the admissibility of certain evidence prior to trial or at trial but outside the presence of the jury.

And as I have explained in prior posts, to be admissible at trial, evidence must be “authenticated”, i.e., the party offering the evidence must show that it is what it is claimed to be.  In federal cases, the authentication of evidence is governed by Rule 901(a) of the Federal Rules of Evidence, which says the “requirement of authentication . . . as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims” it to be. Rule 901(b) gives some examples of how evidence can be authenticated: testimony by someone who can identify it; an expert’s comparing it with “specimens which have been authenticated:’ distinctive characteristics; public records; or any other method prescribed by law.

The Court of Appeals rejected Mebrtatu’s argument that the government’s evidence at trial did not sufficiently authenticate the text messages found on the cell phone. U.S. v. Goode, supra.  It noted that the methods of authenticating evidence mentioned in Rule 901(b) include “[t]estimony that an item is what it is claimed to be” and “appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.”  U.S. v. Goode, supra.  

The Court of Appeals also explained that the prosecution’s

`burden of proof for authentication is slight. All that is required is a foundation from which the fact-finder could legitimately infer that the evidence is what the proponent claims it to be.’ U.S. v. Reilly, 33 F.3d 1396 (U.S. Court of Appeals for the 3d Circuit 1994).  As we previously explained:

`[T]here need be only a prima facie showing, to the court, of authenticity, not a full argument on admissibility. Once a prima facie case is made, the evidence goes to the jury and it is the jury who will ultimately determine the authenticity of the evidence, not the court. The only requirement is that there has been substantial evidence from which they could infer that the document was authentic.’

U.S. v. Reilly, supra (quoting U.S. v. McGlory, 968 F.2d 309 (U.S. Court of Appeals for the 3d Circuit 1992)).

U.S. v. Goode, supra.  

The court then found that at Mebrtatu’s trial the prosecution presented

substantial evidence from which a jury could infer that the text messages in question were authentic and attributable to Mebrtatu. First, as Trooper Lora testified at trial, the device containing these text messages was found on Mebrtatu's person. . . .

Second, the content of the text messages indicates that Mebrtatu was the user of the seized phone and hence the sender and receiver of the messages found on that phone. . . . Numerous text messages received by each of the three numbers associated with the phone were sent to `Promise.’ Moreover, in one of the text messages sent from that phone, the sender identified herself as `Promise.’

Another indicator that Mebrtatu used the phone in question is that several text messages sent and received by each of the three phone numbers referred to `markcus,’ and text messages stated `I love you Markcus.’ . . . The content of these messages, taken together with the fact that Markcus Goode identified Promise as his girlfriend of eight months, provides evidence of their authenticity.

Finally, the government correctly notes that the phone contained other text messages whose content, when considered in conjunction with Jessica Randolph's testimony, supports a finding of authenticity.

U.S. v. Goode, supra.  

For all these reasons, the Court of Appeals affirmed the District Court judge’s denial of Mebrtatu’s motion to suppress and motion in limine. U.S. v. Goode, supra.  

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