FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PACIANO LIZARRAGA-TIRADO, AKA

Pasiano Lizarraga-Tirado,

Defendant-Appellant.

No. 13-10530

D.C. No.

4:13-cr-00213-

FRZ-LAB-1

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

evidentiaryconcerns, includingmalfunction 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 crossexamined 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,

topographylines—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 therebymisstate 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 computergenerated 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

evidentiaryconcerns. 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