USA v. Merchant

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
UNITED STATES OF AMERICA,
-against-
ASIF MERCHANT,
Defendant.
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MEMORANDUM & ORDER
24-CR-362(EK)
ERIC KOMITEE, United States District Judge:
The government is seeking a pretrial ruling on two
motions in limine. 	Both motions are opposed. 	The Court
determines the motions as follows.
Motion to Protect Witness Identities. 	This motion is
granted in part, as described below, largely for the reasons set
out in the government’s motion and subsequent letters. 	The
government seeks authorization to use specified measures to
protect the identities of certain witnesses. 	Merchant opposes
this motion as to one witness in particular: the government’s
confidential source, whose identity he already knows. 	But such
measures are appropriate “to protect the safety of witnesses”
even when the defendant knows the witness’s identity. 	See,
e.g., United States v. Al-Farekh, 810 F. App’x 21, 25-26 (2d
Cir. 2020).1 	The defendant also points out that the sealed
1 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
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complaint “discussing the [confidential source’s] activities” is
available on the Department of Justice’s website. 	ECF No. 120,
at 1.2 	Even if some such activities are described in the public
domain, however, the witness’s identity is not, and the proposed
protective measures will thus help ensure his safety vis-à-vis
third parties.
The government also seeks to protect the identities of
two FBI agents who acted in an undercover capacity. 	Merchant
objects to one of the government’s proposed measures for these
witnesses: namely, the request to preclude questions concerning
the FBI undercover program’s “training and operations.” 	ECF No.
77, at 37; ECF No. 88, at 18. 	The Court will reserve judgment
on this measure until the issue has crystallized.
Merchant does not oppose the remaining protective
measures, provided any disguises are not “obvious” and any
pseudonyms used are not “evidently pseudonymous.” 	ECF No. 88,
at 17. 	The government has already represented that any
disguises will be “light.” 	ECF No. 77, at 37. 	Given that, and
assuming the government uses pseudonyms that are not “evidently
pseudonymous,” this motion is granted, subject to the one
measure discussed above.
2 Page numbers in citations to record documents other than briefs refer
to ECF pagination.
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Motion to Authenticate Device Extractions and Reports.
The government advises that FBI agents extracted data from
certain electronic devices, including Merchant’s cell phones and
laptop, by copying the information using a forensic software
program. 	Agents then electronically generated reports that
display the data in a readable format. 	The government now seeks
to authenticate these extractions, as well as the reports, via
certification pursuant to Federal Rule of Evidence 902.
In response, Merchant argues that “none of the
declarations identifies the specific software used . . . or
provides evidence that the process is reliable.” 	ECF No. 118,
at 2 (citing Fed. R. Evidence 902(11), (12) (2000 advisory
committee note)). 	But the certifications at issue comply with
Rules 902(13) and (14), neither of which requires the brand name
of the software to be stated. 	As to the copies, Rule 902(14)
allows for authentication by certification of data copied from
an electronic device. 	Here, government personnel with firsthand
knowledge have declared that the extractions constitute “true”
copies of the data on the corresponding devices, and described
the automated process by which they confirmed that accuracy.
ECF No. 126-2, at 7. 	As to the reports, Federal Rule 902(13)
allows for authentication of records generated by an electronic
process or system.
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Nor will the proposed approach violate Merchant’s
Confrontation Clause right, contrary to his contention. 	The
Supreme Court has explained that a “[a] clerk could by affidavit
authenticate or provide a copy of an otherwise admissible
record, but could not . . . create a record for the sole purpose
of providing evidence against a defendant.” 	Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 322–23 (2009); see also United
States v. Carter, No. 21-CR-681, 2024 WL 268248, at *2-3
(S.D.N.Y. Jan. 24, 2024) (FBI agent’s affidavit describing
“decryption process” did not “raise any concerns with respect to
the Confrontation Clause”); United States v. Forney, No. 24-CR-
146, 2025 WL 2208298, at *17 (E.D.N.Y. Aug. 4, 2025) (“[A]
certificate of authentication is not testimonial and could,
therefore, be admitted . . . absent live testimony.”); cf.
United States v. Hunt, 534 F. Supp. 3d 233, 256 (E.D.N.Y. 2021)
(collecting cases from five circuits that certifications
“authenticating business records are not testimonial”); United
States v. Clotaire, 963 F.3d 1288, 1296 (11th Cir. 2020)
(argument that business records certifications are testimonial
is “foreclosed by Melendez-Diaz”).
Neither the extracts nor the certifications are
testimonial. 	The Second Circuit has explained that “raw
cellphone extraction reports” containing “only machine-generated
results . . . were not the statements of anyone,” and thus did
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not implicate the Confrontation Clause. 	United States v.
Gonzalez, 144 F.4th 396, 407 (2d Cir. 2025). 	The same is true
of the electronically generated reports at issue here.
And the certifications themselves fit within the
exception described in Melendez-Diaz: they describe the
extraction software as “creating a digital copy of data stored
on the electronic device . . . and creat[ing] readable data,
files, and information from the extraction.” 	E.g., ECF No. 126-
2, at 6.3 	As one court has observed, “[g]iven the records
themselves do not fall within the constitutional guarantee
provided by the Confrontation Clause, it would be odd to hold
that the foundational evidence authenticating the records do.”
United States v. Ellis, 460 F.3d 920, 927 (7th Cir. 2006). 	For
the reasons stated above and in the government’s briefing, this
motion is granted.
SO ORDERED.
/s/ Eric Komitee__________
ERIC KOMITEE
United States District Judge
Dated: 	February 18, 2026
Brooklyn, New York
3 To the extent the certifications describe evidence as “relevant,” the
government is directed to redact such statements. 	See, e.g., ECF No. 126-2,
at 16.
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