USA v. Davis

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States of America v. Antoine Davis
Case No. 3:18-cr-00131-TMB-MMS
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
The matter comes before the Court on the United States’ “Motion in Limine to Allow
Authentication and Admission of Certified Records” (the “Authentication Motion”).1 Defendant
Antoine Davis opposes the Motion.2 	Oral argument was not requested and the Court finds the
matter suitable for disposition without oral argument. 	The matter is fully briefed and ready for
decision. For the following reasons, the Motion is GRANTED.
Davis was arrested and initially indicted on October 18, 2018.3 In the Superseding Indictment,
Davis was charged with: (1) Possession with Intent to Distribute Controlled Substances, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (“Count 1”); (2) Felon in Possession of Firearms, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (“Count 2”); (3) Attempted Distribution of a
Controlled Substance, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and (b)(1)(C) (“Counts 3–
4”); (4) Possession with Intent to Distribute Controlled Substances, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A) (“Count 5”); (5) Felon in Possession of Firearms, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (“Count 6”); (6) Maintaining a Drug Involved Premises, in violation
of 21 U.S.C. § 856(a)(1) 	(“Count 7”); (7) Possession a Firearm in Furtherance of a Drug
Trafficking Crime, in violation of 18 U.S.C. § 924 (c)(1)(A)(i) (“Count 8”); (8) Criminal
Contempt, in violation of 18 U.S.C. § 401(3) (“Count 9”).4 Trial is set for May 17, 2021.5
The United States brings the Motion to “allow admission of electronic records by certification”
pursuant to Federal Rules of Evidence (the “Rules”) 902(11) and 902(13).6 	The United States
intends to offer the following electronic process records into evidence:
• 	Certificate of Authentication by Jared Lonborg for video surveillance from the
USPS Anchorage Processing and Distribution Center at 4141 Postmark Drive,
Anchorage, AK 99530.
1 Dkt. 255 (Motion).
2 Dkt. 258 (Opposition to Motion).
3 Dkts. 4 (Minute Entry); 10 (Indictment).
4 Dkts. 10; 186 (First Superseding Indictment).
5 Dkt. 246 (Trial Scheduling Order).
6 Dkt. 255 at 1.
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• 	Certificate of Authentication by Daniel Joy for video surveillance from the USPS
Compton Post Office at 701 S. Santa Fe Ave., Compton, CA 90221.7
The United States argues that while the Rules “require documents to be authenticated as a
condition precedent to admissibility,” records of “regularly conducted activity” do not need to be
authenticated at trial “if they are accompanied ‘by a written declaration of [their] custodian or other
qualified person’ attesting that they meet each of the requirements of Rule 803(6).”8 Similarly,
the United States argues that electronic records “may also be admitted using a certification that
meets the requirements” of Rule 902(11).9 It argues that the Court has the authority to allow the
proffered certificates to authenticate the video records and that doing so in advance of trial “would
allow the United States to avoid calling two out-of-state witnesses merely for the purpose of
authenticating video records.”10
Davis filed a brief opposition, arguing that the United States should “not be allowed to use the
business records exception to allow the recordings” and arguing that “the videos are subject to
confrontation and cross-examination” because they are “testimonial rather than mere business
record[s.]”11 Davis “wants to cross examine the individuals pursuant to his [Sixth] Amendment”
right under the Confrontation Clause.12
The Sixth Amendment ensures that those accused in criminal prosecutions shall “be confronted
with the witnesses against him[.]”13 “The Confrontation Clause ‘guarantees a defendant’s right to
confront those who “bear testimony” against him. A witness’s testimony against a defendant is
thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant
had a prior opportunity for cross-examination.’”14 	The Supreme Court distinguishes between
authenticating a record by affidavit and “creat[ing] a record for the sole purpose of providing
evidence against a defendant.”15 The Ninth Circuit has held that “a routine certification by the
custodian of a domestic public record . . . and a routine attestation to authority and signature . . . are
not testimonial in nature.”16 It also held that business records may be authenticated by a certificate
where the certification states that the record was “(1) created at or near the time of the events they
purported to establish, by someone with knowledge of those events; (2) kept in the course of
regularly conducted business; (3) made as part of that business’s regular practice; and (4) true and
7 Id. at 2; see Dkts. 255-1 (Certificate of Authenticity re: Video Surveillance from Anchorage
P&DC); 255-2 (Certificate of Authenticity re: Video Surveillance from Compton, CA Post Office).
8 Dkt. 255 at 2–3 (quoting Fed. R. Evid. 902(11)).
9 Id. at 3.
10 Id. at 4.
11 Dkt. 258 at 2.
12 Id. at 1.
13 U.S. Const. amend. VI.
14 United States v. Anekwu, 695 F.3d 967, 973 (9th Cir. 2012) (quoting Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 309 (2009)).
15 Melendez-Diaz, 557 U.S. at 322–23 (emphasis in original).
16 United States v. Weiland, 420 F.3d 1062, 1077 (9th Cir. 2005).
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correct copies.”17 	If the certificates are “‘merely to authenticate’” the records, and “‘not to
establish or prove some fact at trial[,]’” then the certificates may not be testimonial.18
Rule 902(11) states that a certified domestic record of regularly conducted activity may be
authenticated via certificate of a custodian if it meets the requirements of Rule 803(6) and with
federal statute or rule prescribed by the Supreme Court.19 It also states that the proponent “must
give the adverse party reasonable written notice of intent to offer the record” and make the
certification available to them so that the adverse party “has a fair opportunity to challenge” it.20
Rule 902(13) states that certain electronic records may be authenticated by certification that
“complies with the certification requirements of Rule 902(11) or (12). The proponent must also
meet the notice requirements of Rule 902(11).”21
Here, the Court finds that the proffered certifications at Dockets 255-1 and 255-2 meet the
requirements for authentication as outlined by Rule 902(11) and 902(13) and applicable Supreme
Court and Ninth Circuit precedent.22 The proffered certificates are not testimonial and do not run
afoul of the Confrontation Clause because they were not created “for the sole purpose of providing
evidence 	against 	a 	defendant” 	and, 	instead, 	are 	simply 	a 	“routine 	certification 	by 	the
custodian[.]”23 Davis has not raised any argument or cited to any authority that supports a finding
that the proffered certificates are testimonial in nature. The proffered certifications state that the
custodians are “familiar with how the records were created, managed, stored, and retrieved” and
that:
all records attached to this certificate were made at or near the time of the
occurrence of the matter set forth by, or from information transmitted by, a person
with knowledge of those matters, they were kept in the ordinary course of the
regularly conducted business activity of the entity, and they were made by the entity
as a regular practice[.]24
This meets the requirements of Rule 902(11) and 902(13). By attaching the proffered certifications
to the Authentication Motion, the United States also satisfies the Rule 902(11) notice requirement.
Davis has not challenged the sufficiency of the certificates, other than through his Confrontation
17 Anekwu, 695 F.3d at 976.
18 Id. at 977 (quoting United States v. Yeley–Davis, 632 F.3d 673 (10th Cir. 2011), cert. denied,
563 U.S. 969 (2011)).
19 Fed. R. Evid. 902(11).
20 Id.
21 Fed. R. Evid. 902(13).
22 See Anekwu, 695 F.3d at 976–77.
23 See Melendez-Diaz, 557 U.S. at 322–23; Weiland, 420 F.3d at 1077; Anekwu, 695 F.3d at 976–
77; see also United States v. Kahre, 610 F. Supp. 2d 1261, 1265 (D. Nev. 2009) (“Although
certifications under Rule 902(11) serve as a substitute for live testimony establishing the
foundation for authenticating business records, they are not ‘testimonial’ . . . and therefore do not
offend the Confrontation Clause.”).
24 See Dkts. 255-1 at 1; 255-2 at 1.
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Clause arguments. 	Accordingly, digital records addressed in the Authentication Motion are
sufficiently authenticated.
Davis’s opposition to the Authentication Motion also indicates that he is opposed to admission of
the videos into evidence—separate and apart from his objection to the United States’ attempt to
authenticate the videos.25 	The Authentication 	Motion 	only 	addresses 	the authentication
requirements of the Rules. The Motion does not preclude Davis from objecting to the admission
of the videos on other grounds at trial.
Based on the foregoing, the Authentication Motion at Docket 255 is GRANTED. The records of
“Evidence #IS0001264619 (CD containing video files) - Video surveillance from Anchorage
P&DC” and “Evidence #IS0001264617 (CD containing video files) – Video surveillance from
Compton, CA Post Office” are authenticated in accord with the attached certificates at Dockets
255-1 and 255-2.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: May 13, 2021.
25 Dkt. 258 at 2 (“The prosecution should not be allowed to use business records exception to allow
the recordings.”).
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