United States v. Robert Duncan

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 19, 2024
• Docket: 22-10278
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 19 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10278

Plaintiff-Appellee, D.C. No. 2:19-cr-00090-KJM-1 v.

ROBERT PIERRE DUNCAN, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding

Submitted January 10, 2024 ** San Francisco, California

Before: SILER,*** CLIFTON, and M. SMITH, Circuit Judges.

In March 2022, a California jury convicted Robert Duncan of trafficking a 17-

year-old victim by befriending her and then inducing her to engage in prostitution

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. for his sole profit. While Duncan primarily sold his prostitutes—including the

victim—in person on the Oakland “blade,” he also set up online advertisements on

adult websites. Two of these advertisements of the victim included multiple pictures

of the victim in her underwear, a description of her, the prices Duncan would charge,

and his own phone numbers. At trial, the government successfully introduced PDF

copies of these advertisements as evidence. On appeal, Duncan argues that the trial

court’s decision to admit this evidence violated the Rules of Evidence because the

government failed to properly authenticate the advertisements and that his

conviction should therefore be vacated. Finding no error, we affirm the judgment.

The district court’s decision to admit evidence is reviewed for an abuse of

discretion. United States v. Tank, 200 F.3d 627, 630 (9th Cir. 2000) (“We review a

district court’s finding that evidence is supported by a proper foundation for an abuse

of discretion.”). If we find admission of the evidence to be a mistake, we then

proceed to determine if it was a harmless error. See United States v. Mehrmanesh,

689 F.2d 822, 832 (9th Cir. 1982) (examining a mistaken evidentiary ruling for

harmless error). Reversal is warranted only if any “error more likely than not

affected the verdict.” United States v. Workinger, 90 F.3d 1409, 1412 (9th Cir.

1996).

To show that evidence is admissible, the proponent must put forward

“evidence sufficient to support a finding that the item is what the proponent claims

2 22-10278 it is.” Fed. R. Evid. 901(a). Bearing this burden is simply a matter of making “a

prima facie showing of authenticity” sufficient for a reasonable jury to “find in favor

of authenticity or identification.” Tank, 200 F.3d at 630 (quoting United States v.

Black, 767 F.2d 1334, 1342 (9th Cir. 1985)). Once the prima facie case is made,

“[t]he government must also establish a connection between the proffered evidence

and the defendant.” Id.

Here, the government put forth the testimony of FBI Special Agent Schofield.

On October 11, 2018, Agent Schofield discovered two online prostitution

advertisements that included pictures of the victim alongside Duncan’s phone

number. Using his government computer, he utilized the “print to PDF” feature to

convert the webpages “to a file that could be saved on the computer.” Agent

Schofield testified that the exhibits the government sought to introduce were “fair

and accurate depictions” of what he saw online, and testified to the website where

he obtained them. He also testified that he had utilized this feature “probably

hundreds” of times and had never known it to change the content of the webpage.

The only information added to the file was a small date stamp and a URL indicating

the origin of the file. The government then connected the exhibits to Duncan by

referring to the listed phone numbers, which had already been shown to belong to

him.

Duncan objected that the exhibits lacked foundation. Specifically, he argued

3 22-10278 that the government failed to prove that Duncan himself had authored the

advertisements. The court overruled the objection and admitted the evidence,

reasoning that while the government could not definitively say at the time of

admittance that Duncan authored or created the advertisements, the government had

made a prima facie case of their authenticity—that is, the online prostitution

advertisements were what the government purported them to be—and that there was

sufficient connection between the advertisements and Duncan.

Because we agree with the district court that the government sustained its

burden to make a prima facie showing of authenticity and to connect the exhibits to

Duncan, we hold that the district court did not abuse its discretion in admitting them.

The purpose of Agent Schofield’s testimony was to prove that the exhibits were in

fact true and accurate representations of what he saw on the internet that day. His

testimony was not presented to prove that Duncan actually authored the posts. Once

the government proved that the exhibits were accurate copies of the prostitution

advertisements that Agent Schofield observed online, it was able to connect those

exhibits to Duncan through the phone numbers in the advertisements.

Duncan’s reliance on the Seventh Circuit’s decision in United States v.

Jackson, 208 F.3d 633 (7th Cir. 2000), is unavailing. In Jackson, the Seventh Circuit

affirmed a lower court’s decision to exclude screenshots from a white supremacist

chat room because they could not be authenticated under Rule 801. Id. at 637-38.

4 22-10278 However, the facts of the authentication dispute in Jackson are readily

distinguishable. In that case, there was significant evidence in the record of the

proponent’s untrustworthiness, leading the trial court to conclude that the proponent

failed to meet her prima facie burden that the screenshots were what she claimed

them to be, “as opposed to being slipped onto the groups’ websites by [the

proponent] herself, who was a skilled computer user.” Id. at 638. In this case,

however, Duncan never argued to the district court that Agent Schofield was

untrustworthy in his testimony authenticating the exhibits. Furthermore, the

government provided further evidence—apart from Agent Schofield’s testimony—

to make a prima facie showing that the online prostitution advertisements were what

the government claimed them to be.

Evaluated under the Rule 901 standard as expounded in Tank, “the

government made an adequate foundational showing of the relevance and the

authenticity” of the online prostitution advertisements. Tank, 200 F.3d at 631. The

district court did not abuse its discretion in admitting them, and once properly

admitted, it was up to “the jury to decide what weight to give that evidence.” Id.

AFFIRMED.

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