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Case 3:20-cr-00052-BAJ-RLB Document 124 07/23/21 Page 1 of 9
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA CRIMINAL ACTION
VERSUS
ELLIOT STERLING N0.20-00052-BAJ-RLB
ORDER
On August 3, 2020, the Federal Grand Jury returned a fourteen" count
Indictment against Defendant Elliot Sterling alleging violations of wire fraud,
financial aid fraud, and money laundering. See (Doc. 1). The Government moved for
a hearing under Federal Rule of Evidence ("Rule") 104 for the purpose of determining
the authenticity of three categories of documents: (1) certain certified domestic
records of regularly conducted business, (Docs. 25, 32, 68); (2) certain documents
provided by the Custodian of Records for Sterling Educational Consulting, LLC
(Doc. 27), and; (3) recordings of Defendant at JP Morgan Chase Bank, Baton Rouge
Community College ('(BRCC"), and on jail calls (Doc. 27)1. The Court held a hearing
on the matter on Thursday, June 24, 2021. Consistent with the Court's ruling at the
evidentiary hearing, the Government's Motions are GRANTED, and the documents
and recordings are deemed authentic and admissible at trial, subject to objections as
provided in the Federal Rules of Evidence.
1 To the extent the Government requested to authenticate other recordings of Defendant, it
withdrew that portion of its Motion and reserved the right to authenticate those recordings
at trial.
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I. LEGAL STANDARD
A. Self-Authenticating Documents Pursuant to Rules 902(11) and
902(13)
Rule 902(11) "permits the admission of certified domestic records of a regularly
conducted activity. Records sought to be authenticated through Rule 902(11) must
meet the requirements of Rule 803(6)(A)~(C)/) United States v. Daniels, 723 F.3d 562,
579 (5th Cir. 2013); See also FED. R. EVID. 902(11). "Under Rule 902(11), the
authenticity of business records may be established by written declaration of the
custodian provided to opposing counsel a reasonable time before trial." Daniels,
723 F.3d at 579. Similarly, Rule 902(13) provides that "a record generated by an
electronic process or system that produces an accurate result, as shown by a
certification of a qualified person that complies with the certification requirements of
Rule 902(11)" is self-authenticating and admissible. FED. R. Civ. P. 902(13).
A record meets the standard outlined by Rule 803(6) where: a) it was made at
or near the time of an activity by someone with knowledge; b) it was kept in the course
of a regularly conducted activity of business; and c) making the record was a regular
practice of that activity. See FED. R. ClV. P. 803(6)(A)-(C).
B. Audiovisual Recordings
To establish that evidence is authentic, the government must make a prima
facie showing of authenticity, meaning that there is "substantial evidence from which
[the jury] could infer that the [evidence] is authentic. United States v. Smith,
481 F.3d 259, 265 (5th Cir. 2007) (citing United States v. Jardina, 747 F.2d 945, 951
(5th Cir. 1984)). Once this showing is made, the jury bears the ultimate responsibility
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for deciding whether the evidence is authentic. Id.
Video evidence may be authenticated either through testimony from an
eyewitness who establishes that the video accurately depicts the underlying events,
See United States u. Castillo-Chavez, 555 F. App'x 389, 395 (5th Cir. 2014) (citing
FED. R. EVID. 901(b)), or by providing foundation evidence sufficient to show the
circumstances under which the film was activated and made, the chain of custody of
the film, and the reliability of the process." United States v. Clayton, 643 F.2d 1071,
1074 (5th Cir. 1981) (citing United States v. Taylor, 530 F.2d 639 (5th Cir. 1976)).
Similarly, audio recordings may be authenticated through the testimony of a
witness with personal knowledge of the conversation. See United States v.
Lance, 853 F.2d 1177, 1181-82 (5th Cir. 1988). However, an operator of an audio
system may also establish the authenticity of an audio recording if the Government
demonstrates: "1) tlie operators competency, 2) the fidelity of the recording
equipment, 3) the absence of material alterations, and 4) the identification of relevant
sounds or voices." United States v. Green, 324 F.3d 375, 379 (5th Cir. 2003) (citing
United States v. Biggins, 551 F.2d 64, 66 (5th Cir. 1977)) (the "Biggins factors"). The
party seeking to establish authenticity need not meet all the Biggins factors if, upon
independent examination, "the district court is convinced that the 'recording
accurately reproduces the audio experience/" Id. (citing United States v.
Buchanan, 70 F.3d 818, 827 (5th Cir. 1996)).
II. ANALYSIS
A. Self-Authenticating Documents
At the June 24, 2021 evidentiary hearing, the Government provided
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certifications, declarations, or affidavits from AT&T, bl Bank, BankMobile, BRCC,
Capital One, N.A., Cox Communications, Inc., East Baton Rouge Parish Library, East
Baton Rouge School System, East Baton Rouge Technology, Fitness International,
Google LLC ("Google"), Harrah's New Orleans, JPMorgan Chase Bank, N.A.,
Louisiana Community College and Technical College System, the Louisiana
Department of Education, Oath Holdings, Inc., Pelican State Credit Union, Finger,
Square, Inc., the United States Department of Education, and Woodforest National
Bank that meet the standards outlined by Rules 902(11), 902(13), and 803(6)(A)~(C).
See (Doc. 68-2, p. 3-37). Most of these certifications were provided to Defendant in
advance of the evidentiary hearing, specifically on January 25, 2021,
February 19, 2021, and June 16, 2021. See (Docs. 25, 32, 68). The certification from
Harrah s New Orleans was provided at the hearing.
The Defendant objected on the basis of hearsay during the introduction of each
certification. While the certifications and the documents they certify are out of court
statements, they are admissible under the Records of a Regularly Conducted
Activity exception to the hearsay rule as outlined by Rule 803(6). As was established
on the record, the Court finds that each certificate meets the standards provided by
Rule 902(11), Rule 902(13), and Rule 803(6)(A)-(C) because the records were made at
or near the time of a regularly conducted activity, the record was kept in the course
of a regularly conducted activity of a business or organization, and it was the regular
practice of the business or organization to make a record of that activity. Therefore,
both the certifications and the documents accompanying the certifications are
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authentic and admissible at trial. Defendant s objection is overruled.
The Defendant also objected specifically to the certification from Google on the
basis of improper certification. The certification from Google is electronically signed
by Richard Daugherty, who attested under penalty of perjury that the following was
true and correct, to the best of his knowledge: he was authorized to submit the
affidavit on behalf Google, he has personal knowledge of the facts within the
certificate of authenticity, he is qualified to authenticate the records requested by the
Government because he is familiar with how the records were created, managed,
stored, and retrieved, and that the records attached to the certificate are true and
correct copies of the records made and retained by Google. See (Doc. 68, p. 20). As was
stated on the record, the Court finds that this certificate also meets the standards
provided by Rule 902(11), Rule 902(13), and Rule 803(6)(AHC). Therefore, the
documents from Google are authentic, and admissible as records of regularly
conducted activity pursuant to Rule 803(6). Accordingly, Defendants objection is
overruled.
B. Business Records of Sterling Educational Consulting
The Government sought to authenticate the records of regularly conducted
activity of Sterling Educational Consulting, LLC, a limited liability company created
in March 2019. (Doc. 26, p. 1). The Government argues that because Defendant
produced the documents in response to a Grand Jury subpoena in his capacity as
custodian of records of Sterling Educational Consulting, LLC,2 the documents are
2 Although Defendant is the sole member of Sterling Educational Consulting, LLC, he can
assert no Fifth Amendment privilege over the documents. The Supreme Court has held that:
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authentic and admissible as an exception to the hearsay rule because they are records
of Sterling Educational Consulting LLC s regularly conducted activities. (Doc. 26,
p. 2). The Defendant had no objection to the introduction of these documents.
Without objection, the Court finds that the documents are authentic and
admissible at trial.
C. Audiovisual Recordings
i. JP Morgan Chase Video
The Government called Angela Brown to establish the authenticity of the JP
Morgan Chase video recordings. Brown testified that she had been employed by JP
Morgan Chase for fourteen years as a fraud investigator. JP Morgan Chase has video
cameras at every branch. These cameras accurately record activities within the
branch and the recordings are saved for a period of time. These recordings can only
be retrieved- by authorized personnel and downloaded to a CD or USB for storage, but
cannot be altered or deleted. She also testified that she followed this process when
retrieving videos requested by the Government. The Defendant did not object to the
authenticity of the videos contained on the disc.
Because the government provided a sufficient foundation to establish the
artificial entities such as corporations may act only through their agents, and
a custodians assumption of his representative capacity leads to certain
obligations, including the duty to produce corporate records on proper demand
by the government. Under those circumstances, the custodians act of
production is not deemed a personal act, but rather an act of the corporation.
Any claim of Fifth Amendment privilege asserted by the agent would be
tantamount to a claim of privilege by the corporation—which of course
possesses no such privilege.
Braswell v. United States, 487 U.S.99,104, 108 S. Ct. 2284, 2288, 101 L. Ed. 2d 98 (1988).
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provides the phone services for East Baton Rouge Parish Prison. Blanco testified that
he maintains the hardware and software for the phones and has worked in this
capacity for eight years. He further testified that each inmate has a unique PIN that
must be entered when a call is made. The PIN consists of the inmate's ID number
and a phone passcode selected by the inmate. When a call is made, the system creates
a call reference ID, a time stamp, a date stamp, a record of the number that was
called, and collects certain other metadata, such as whether the call was prepaid or
collect. All phone calls made from East Baton Rouge Parish Prison are stored on a
server maintained by 1C Solutions, along with the metadata. The recordings can be
accessed through a web-based portal by account administrators, such as Blanco, but
the calls cannot be altered or deleted.
In response to a request by the United States for all calls made to a specific
phone number from East Baton Rouge Parish jail, Blanco created a disc containing
tlie information. He retrieved all relevant calls from the system, burned them to a
disc, and delivered them directly to the case agent assigned to this matter. None of
the calls were altered or deleted.
The Government then called FBI Task Force Officer Tom Bolton, who testified
that he heard the Defendant speak five times, including at the June 24, 2021 hearing.
He listened- to all seventeen files provided by Blanco, and identified Defendant's voice
on sixteen of the seventeen calls.3 Defendant also allegedly identified himself on eight
of the calls.
3 One caU was made, but not completed. Defendant s voice was not present on that call.
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Defendant argued that the Government should be required to call witnesses to
individually authenticate each call. This is not required under the law. While audio
recordings may be authenticated through the testimony of a witness with personal
knowledge of the conversation, this is not required so long as the party seeking to
establish authenticity meets enough of the Biggins factors to establish that the
recording accurately reproduces the audio experience. Buchanan, 70 F.3d at 827.
The Government has done so here. Accordingly, the recordings of the jail calls are
deemed authentic and admissible at trial, subject to objections on other evidentiary
grounds as provided in the Federal Rules of Evidence.
HI. CONCLUSION
Having found that the Defendant has been notified of the United States' intent
to offer certain exhibits for pretrial authentication, including certified domestic
records of regularly conducted activities, and has been afforded a fair opportunity to
challenge such exhibits,
IT IS ORDERED that the Government's Motion to Authenticate (Doc. 68) is
GRANTED. The records accompanying the certificates of the aforementioned
businesses are deemed authentic and admissible at trial.
IT IS FURTHER ORDERED that the Government's Motion to Authenticate
Business Records (Doc. 26) is GRANTED. The business records of Sterling
Educational Consulting, LLC are deemed authentic and admissible at trial.
IT IS FURTHER ORDERED that the Government's Motion to Authenticate
Recordings (Doc. 27) is GRANTED as to the recordings of the Defendant at JP
Morgan Chase Bank, Baton Rouge Community College, and on certain calls made
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from East Baton Rouge Parish Jail. These audiovisual recordings are deemed
authentic, and are admissible at trial, subject to objections on other grounds as
provided by the Federal Rules of Evidence.
IT IS FURTHER ORDERED that the Government's Motion to set a hearing,
in advance of trial, regarding the authenticity of certain exhibits (Doc. 25) is
TERMINATED as moot.
Baton Rouge, Louisiana, this ^^___ day of July, 2021
^.
JUDGE BRIAN ^-JACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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