United States v. Paciano Lizarraga-Tirado , 789 F.3d 1107 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10530
Plaintiff-Appellee,
D.C. No.
v. 4:13-cr-00213-
FRZ-LAB-1
PACIANO LIZARRAGA-TIRADO, AKA
Pasiano Lizarraga-Tirado,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Argued and Submitted
April 14, 2015—San Francisco, California
Filed June 18, 2015
Before: Alex Kozinski and Susan P. Graber, Circuit
Judges, and Michael A. Ponsor,* Senior District Judge.
Opinion by Judge Kozinski
*
The Honorable Michael A. Ponsor, Senior District Judge for the U.S.
District Court of Massachusetts, sitting by designation.
2 UNITED STATES V. LIZZARAGA-TIRADO
SUMMARY**
Criminal Law
The panel affirmed the defendant’s conviction under
8 U.S.C. § 1326 as a previously removed alien who entered
and was found in the United States, in a case in which a
Border Patrol agent testified that she contemporaneously
recorded the coordinates of the defendant’s arrest using a
handheld GPS device.
The panel held that because a Google Earth satellite
image, like a photograph, makes no assertion, it isn’t hearsay.
The panel also held that a tack placed on the satellite image
by the Google Earth program and automatically labeled with
GPS coordinates without any human intervention isn’t
hearsay.
The panel wrote that machine statements might present
evidentiary concerns, including malfunction or tampering, but
that such concerns are addressed by rules of authentication,
which the defendant didn’t raise at trial.
The panel concluded that because the satellite image and
track-coordinates pair weren’t hearsay, their admission didn’t
violate the Confrontation Clause.
The panel rejected the defendant’s other claims in a
concurrently filed memorandum disposition.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. LIZZARAGA-TIRADO 3
COUNSEL
Roger H. Sigal (argued), Law Offices Roger H. Sigal,
Tucson, Arizona, for Defendant-Appellant.
Ryan J. Ellersick (argued), Assistant United States Attorney,
Robert L. Miskell, Assistant United States Attorney,
Appellate Chief, John S. Leonardo, United States Attorney,
United States Attorney’s Office, Tucson, Arizona, for
Plaintiff-Appellee.
OPINION
KOZINSKI, Circuit Judge:
Plotting coordinates on a map used to require a sextant, a
compass and quite a bit of skill. Today, anyone can do it with
a few clicks of the mouse. This appeal raises a question born
of that newfound technological prowess: Are a Google Earth
satellite image and a digital “tack” labeled with GPS
coordinates hearsay?
I
On January 17, 2003, defendant was arrested near the
United States-Mexico border. He was charged with illegal
reentry under 8 U.S.C. § 1326 as a previously removed alien
who “entered and was found in the United States.” At trial,
defendant disputed that he had entered the United States
before his arrest. He testified that he was still on the Mexico
side of the border, waiting for instructions from a smuggler
when he was arrested. Because he was arrested on a dark
night in a remote location, he insisted that the arresting
4 UNITED STATES V. LIZZARAGA-TIRADO
Border Patrol agents must have accidentally crossed the
border before arresting him.
The arresting agents, Garcia and Nunez, testified that they
were very familiar with the area where they arrested
defendant and were certain they arrested him north of the
border. Agent Garcia also testified that she
contemporaneously recorded the coordinates of defendant’s
arrest using a handheld GPS device. To illustrate the location
of those coordinates, the government introduced a Google
Earth satellite image, attached as Appendix A.
Google Earth is a computer program that allows users to
pull up a bird’s eye view of any place in the world. It
displays satellite images taken from far above the earth’s
surface with high-resolution cameras. Google Earth
superimposes certain markers and labels onto the images,
such as names of towns and locations of borders. Relevant
here, it also offers two ways for users to add markers of their
own. A user can type GPS coordinates into Google Earth,
which automatically produces a digital “tack” at the
appropriate spot on the map, labeled with the coordinates. A
user can also manually add a marker by clicking any spot on
the map, which results in a tack that can be labeled by the
user.
The satellite image introduced at trial depicts the region
where defendant was arrested. It includes a few default
labels, such as a nearby highway, a small town and the United
States-Mexico border. It also includes a digital tack labeled
with a set of GPS coordinates. Agent Garcia testified that the
GPS coordinates next to the tack matched the coordinates she
recorded the night she arrested defendant. On that basis, she
surmised that the tack marked “approximately where [she
UNITED STATES V. LIZZARAGA-TIRADO 5
was] responding to” on the night of defendant’s arrest.
Because the tack is clearly north of the border, the exhibit
corroborated the agents’ testimony that defendant was
arrested in the United States. Defendant’s lawyer cross-
examined Agent Garcia about whether she had recorded the
GPS coordinates accurately. But he couldn’t cross-examine
her about the generation of the satellite image or the tack
because Agent Garcia hadn’t generated them. Indeed, there
was no testimony regarding the origin of the satellite image
or the tack, and the record doesn’t reflect whether the tack
was automatically generated or manually placed and labeled.
Defense counsel objected to the satellite image on hearsay
grounds. The district court overruled that objection and
admitted the image.
II
Defendant claims that both the satellite image on its own
and the digitally added tack and coordinates were
impermissible hearsay. The rule against hearsay bars
admission of out-of-court statements to prove the truth of the
matters asserted. Fed. R. Evid. 801(c)(2), 802; see also
United States v. Arteaga, 117 F.3d 388, 395 (9th Cir. 1997).
For hearsay purposes, a statement is defined as “a person’s
oral assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion.” Fed. R. Evid. 801(a). In
defendant’s view, the satellite image is hearsay because it
asserts that it “accurately represented the desert area where
the agents worked,” and the tack and coordinates are hearsay
because they assert “where the agents responded and its
proximity to the border.”
We first consider whether the satellite image, absent any
labels or markers, is hearsay. While we’ve never faced that
6 UNITED STATES V. LIZZARAGA-TIRADO
precise question, we’ve held that a photograph isn’t hearsay
because it makes no “assertion.” See United States v. May,
622 F.2d 1000, 1007 (9th Cir. 1980); see also United States
v. Oaxaca, 569 F.2d 518, 525 (9th Cir. 1978). Rather, a
photograph merely depicts a scene as it existed at a particular
time. The same is true of a Google Earth satellite image.
Such images are produced by high-resolution imaging
satellites, and though the cameras are more powerful, the
result is the same: a snapshot of the world as it existed when
the satellite passed overhead. Because a satellite image, like
a photograph, makes no assertion, it isn’t hearsay.
The tack and coordinates present a more difficult
question. Unlike a satellite image itself, labeled markers
added to a satellite image do make clear assertions. Indeed,
this is what makes them useful. For example, a dot labeled
with the name of a town asserts that there’s a town where you
see the dot. The label “Starbucks” next to a building asserts
that you’ll be able to get a Frappuccino there. In short,
labeled markers on a satellite image assert that the labeled
item exists at the location of the marker.
If the tack is placed manually and then labeled (with a
name or GPS coordinates), it’s classic hearsay, akin to
Aronson v. McDonald, 248 F.2d 507, 508–09 (9th Cir. 1957),
where we held that hand-drawn additions to a map—there,
topography lines—were hearsay. Google Earth allows for the
functional equivalent of hand-drawn additions, as a user can
place a tack manually and then label it however he chooses.
This is like drawing an X on a paper map and labeling it
“hidden treasure.” That would be an assertion by the person
drawing the X that treasure can be found at that location.
Similarly, a user could place a tack, label it with incorrect
UNITED STATES V. LIZZARAGA-TIRADO 7
GPS coordinates, and thereby misstate the true location of the
tack.
Because there was no evidence at trial as to how the tack
and its label were put on the satellite image, we must
determine, if we can, whether the tack was computer-
generated or placed manually. Fortunately, we can take
judicial notice of the fact that the tack was automatically
generated by the Google Earth program. By looking to
“sources whose accuracy cannot reasonably be
questioned”—here, the program—we can “accurately and
readily determine[]” that the tack was placed automatically.
See Fed. R. Evid. 201(b). Specifically, we can access Google
Earth and type in the GPS coordinates, and have done so,
which results in an identical tack to the one shown on the
satellite image admitted at trial.
A tack placed by the Google Earth program and
automatically labeled with GPS coordinates isn’t hearsay.
The hearsay rule applies only to out-of-court statements, and
it defines a statement as “a person’s oral assertion, written
assertion, or nonverbal conduct.” Fed. R. Evid. 801(a)
(emphasis added). Here, the relevant assertion isn’t made by
a person; it’s made by the Google Earth program. Though a
person types in the GPS coordinates, he has no role in
figuring out where the tack will be placed. The real work is
done by the computer program itself. The program analyzes
the GPS coordinates and, without any human intervention,
places a labeled tack on the satellite image. Because the
program makes the relevant assertion—that the tack is
accurately placed at the labeled GPS coordinates—there’s no
statement as defined by the hearsay rule. In reaching that
conclusion, we join other circuits that have held that machine
statements aren’t hearsay. See United States v. Lamons,
8 UNITED STATES V. LIZZARAGA-TIRADO
532 F.3d 1251, 1263 (11th Cir. 2008); United States v. Moon,
512 F.3d 359, 362 (7th Cir. 2008); United States v.
Washington, 498 F.3d 225, 230 (4th Cir. 2007); United States
v. Hamilton, 413 F.3d 1138, 1142 (10th Cir. 2005); United
States v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003).
That’s not to say machine statements don’t present
evidentiary concerns. A machine might malfunction, produce
inconsistent results or have been tampered with. But such
concerns are addressed by the rules of authentication, not
hearsay. Authentication requires the proponent of evidence
to show that the evidence “is what the proponent claims it is.”
Fed. R. Evid. 901(a). A proponent must show that a machine
is reliable and correctly calibrated, and that the data put into
the machine (here, the GPS coordinates) is accurate. See
Washington, 498 F.3d at 231. A specific subsection of the
authentication rule allows for authentication of “a process or
system” with evidence “describing [the] process or system
and showing that it produces an accurate result.” Fed. R.
Evid. 901(b)(9); see also United States v. Espinal-Almeida,
699 F.3d 588, 612 (1st Cir. 2012) (evaluating whether
“marked-up maps generated by Google Earth” were properly
authenticated). So when faced with an authentication
objection, the proponent of Google-Earth-generated evidence
would have to establish Google Earth’s reliability and
accuracy. That burden could be met, for example, with
testimony from a Google Earth programmer or a witness who
frequently works with and relies on the program. See Charles
Alan Wright & Victor James Gold, Federal Practice &
Procedure § 7114 (2000). It could also be met through
judicial notice of the program’s reliability, as the Advisory
Committee Notes specifically contemplate. See id.; Fed. R.
Evid. 901 n.9.
UNITED STATES V. LIZZARAGA-TIRADO 9
But defendant didn’t raise an authentication objection at
trial, nor does he raise one on appeal. He raised only a
hearsay objection, and that objection was properly overruled.
Because the satellite image and tack-coordinates pair weren’t
hearsay, their admission also didn’t violate the Confrontation
Clause. See Washington, 498 F.3d at 231; United States v.
Mitchell, 502 F.3d 931, 966 (9th Cir. 2007) (“The
Confrontation Clause does not apply to non-hearsay . . . .”).
Defendant also claims that the prosecutor committed
misconduct and that the district court erred by admitting
evidence of multiple prior removals. We reject those claims
for reasons we explain in a memorandum disposition we file
concurrently with this opinion.
AFFIRMED.
10 UNITED STATES V. LIZZARAGA-TIRADO
APPENDIX A