F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A ME R I C A , Plaintiff-Appellee
,

v

.

P A C I A N O L I Z A R

R A G A -T I R A D O , AKA Pasiano L iz arrag a-Tirado,

Defendant-Appellant

. N o. 13-10530

D.C. No. 4:13-cr-00213- F RZ

- L AB -1

OPI NI ON

Appeal from the United States District Court for the District of Ariz o na F rank R. Z a

pata, Senior District J udg e, Presiding

Arg ued and Submitted April 14, 2015—San F rancisco, California

F iled J une 18, 2015

B e fore: Alex Koz inski and Susan P. Graber, Circuit J udg es, and Michael A. Ponsor, * Senior District J u dg e.

O pinion by

J udg e Koz inski

* T h e H o n o rab le Mich ael A

. P o n so r, Sen io r District J u d g e f or th e U .S. District Co u

rt o f Massach u s etts, sittin g b y d esig n atio n

.U N I T E D S T A T E S V

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SUMMARY * *

Crim inal Law

The panel affirmed the defendant’s conviction under 8 U.S.C. § 1326 as a previously r em o v e d alien who entered and was found i n the United States, in a case in which a B order Patrol age n t testified that she contemporaneously

r e c o rded the coordinates o f the d efendant’s arrest usin g a handheld GPS device.

The p anel held that because a Goog le Earth satellite imag e, like a p hotog raph, makes no assertion, it isn’t hearsay

. The p anel also held that a t a c k placed on the satellite imag e by the Goog le Earth prog ram and automatically labeled with GPS coordinates without any human intervention i s n ’ t hearsay

.
The panel wrote t h a t machine statements mig h t present

e v i dentiary concerns, including malfunction o r t a m p e r i n g , b ut that such concerns are addressed b y rul e s of authentication, which the defendant didn’t raise at trial.

The panel concluded that because the satellite imag e a nd track-coordinates pair weren’t hearsay
, their admission didn’t violate the Confrontation Clause.

The panel rejected the d ef e n dant’s other claims in a concurrently

filed memorandum disposition.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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COUNSEL

Rog er H. Sig al (arg

ued), L aw Offices Rog er H. Sig a l, Tucson, Ariz o na, for Defendant-Appellant.

Ry an J

. Ellersick (arg

ued), Assistant United States Attorney
, Robert L

. Miskell, A ssistant U nited States Attorney
, Appellate Chief, J ohn S. L eonardo, United States A t t o r ney , United States Att o rney ’s Office, T ucson, Ariz ona, for Plaintiff-Appellee.

OP INION

KOZ I NSKI , Circuit J udg e:
Plotting c oordinates o n a map u sed to require a sex tant, a compass and quite a bit of skill. T o day
, any one can do it with

a few clicks o f the mouse. This appeal raises a question born of that newfound technolog ical prowess: Are a Goog le Earth satellite imag e and a d ig i t a l “tack” labeled with GPS coordinates hearsay

?

I

On J anuary 17, 2003, defendant was arrested n ear the U nited States-Mex ico border. He w as charg ed with ill e ga l reentry under 8 U.S.C. § 1326 as a previously removed alien who “ e n t e red and was found in the United States.” A t trial, defendant disputed that he had entered the United States before his arrest. He testified that he was still on the Mex ico side o f the border, waiting f or instructions from a s m u g g ler when he was arrested. B ecause h e w a s arrested on a dark nig ht in a remote location, he i n s i s ted that the arrestingU N I T E D S T A T E S V

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B order P a t r ol ag ents must h av e a ccidentally crossed the border before arresting

him.

The arresting ag ents, Garcia and Nunez , testified that they

were very fam i l i a r with the area where they arrested defendant and were certai n they arrested him north of the b o r d e r

. A g e n t G a r c i a a l s o t e s t i f i e d t h a t s h e contemporaneously r e c orded t h e coordinates of defendant’s arrest using a handheld GPS d evice. To illustrate the location of those coordinates, the g overnment introduced a Goog le Earth satellite imag e, attached as Appendix A.

Goog le Earth is a computer p rog ram that allows users to pull up a bird’s ey e vie w of any place in the w orld. I t display s satellite imag es taken from far ab o v e the e arth’s surface with hig h-resolution camera s

. Goog le Earth superimposes certain markers and labels onto the imag es, such as names of towns and locations of borders. Relevant here, it a lso offers two way s for users to add markers of their

own. A user c an ty

pe GPS coordinates into G o o g le Earth, which automatically produces a d i gi t al “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 t ack that can be labeled by the

user.

The satellite imag e introduced a t t r ial depicts the reg ion where defe n dant w as arrested. I t includes a few default labels, such as a nearby hig hway
, a small town and the United States-Mex ico border. I t also includes a dig ital tack labeled with a set of GPS coordinates. Ag ent G arcia testified that the GPS coordinates nex t to the tack matched the coordinates she recorded the n ig ht she arrested defendant. On that basis, she surmised that the tack marked “approx imately where [ sheU N I T E D S T A T E S V

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was] re sponding to” on the nig ht of defendant’s arrest. B ecause the t ac k is c learly n orth of the border, the ex hibit corroborated the ag ents’ testimony that defendant was arrested in the United S t a tes. Defendant’s lawy e r crosse x amined Ag ent Garcia about whether she had recorded t h e GPS coordinates accurately . B ut he couldn’t cross-ex amine her about the g ener a t i o n o f the satellite imag e o r the tack because Ag ent Garcia hadn’t g enerated them. I ndee d
, there

was no testimony reg arding the orig in o f the satellite imag e
or the tack, and the record does n ’ t r e flect whether the tack

was a utomatically g enerated or manually placed and labeled. Defense counsel objected to the satellite image o n hearsay g rounds. The district court overruled that objection a nd admitted the imag e

.

II

Defendant claims that both the satellite imag e on its o wn and the dig itally added tack and coordinates were impermissible hearsay

. The rule ag ainst hearsay bars admission of out-of-court statements to p rove the truth of the matters a sserted. F ed. R. Evid. 8 0 1(c)(2 )
, 802; see also United States v. Arteaga
, 117 F .3d 3 88, 395 (9th Cir. 1997). F or hearsay purposes, a statement is defined a s “ a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.” F ed. R. Evid. 801(a). I n defendant’s view, t h e satellite imag e is hearsay because it asserts that it “accurately r epresented the desert a re a where the ag ents w orked,” and the tack and coordinates a re hearsay because they assert “where the ag ents resp onded and its prox imity to the border.”

W e first consider whether the satellite imag e, absent any labels or markers, is hearsay

. W hile we’ve never faced thatU N I T E D S T A T E S V

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precise question, w e ’ve h eld that a photog raph isn’t hearsay because it makes no “assertion.” See United States v. May , 622 F .2d 1000, 1007 (9th Cir. 1 9 8 0 ) ; see also United States

v

. O a xaca , 569 F .2d 5 18, 5 25 (9th Cir. 1978). Rat h e r , a photog raph merely depicts a scene as it ex isted at a particular time. The same is true of a Goog le Earth satellite i m a g e

. Such imag es are prod u c ed by hig h-resolution imag ing satellites, and thoug h the c a meras are more powerful, the result is the same: a snapshot of the world as it ex isted when the satellite passed overhead. B ecause a satellite imag e, like a photog raph, makes no assertion, it isn’t hearsay

.

T h e tack and coordinates present a more difficult q u estion. U nlike a satellite imag e itself, labeled marke rs added to a satellite i m ag e do make clear assertions. Indeed, this is what makes them useful. F or ex ample, a d ot labeled with the name of a town asserts that there’s a town where y ou see the dot. The label “Starbucks” nex t to a building asserts that y ou’ll be able to g et a F rappuccin o t h e r e

. I n short, labeled markers on a satellite imag e assert that the labeled item ex ists at the location of the m arker.

I f the t a ck is placed manually and then labeled (with a
name or GPS c o o rdinates), it’s classic h e arsay , akin to Aronson v. M

cDonald
, 248 F

. 2 d 5 07, 508–09 (9th Cir. 1957), where we held that h an d -drawn additions to a map—there, topog raphy lines—were hearsay

. Goog le Earth allows for the functional equivalent of hand-drawn a dditions, as a user can place a tack m a n u a lly and then label it however he chooses. This is like dra wi n g a n X on a paper map a nd labeling it “hidden treasure.” That would be an assertion by the person drawing the X that treasur e can be f ound at that location. Similarly
, a user co u l d p lace a tack, label it with incorrectU N I T E D S T A T E S V

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GPS coordinates, and thereby misstate the true location o f the tack.

B e cause there was no e vidence at trial as to how the tack and i t s label were put on the satellite imag e, we must determine, if we can, wh e t h er the tack was computerg enerated or placed manually

. F ortun a t e l y , we can take judicial notice o f t h e fact that the tack was automatically g enerated by the G o o gle Earth prog ram. B y looking to

“ s o u r c e s w h o s e a c c u r a c y c a n n o t r e a s o n a b l y b e questioned”—here, the p rog r am—we can “accurately a nd readily determine[ ] ” that the tack was placed automatically

. See F ed. R. Evid. 201(b). Specifically
, we can access Goog le Earth and ty

pe in the GP S coordinates, and have done so, which results in an identical tack to the o n e shown o n the satellite imag e admitted at trial.

A tack p laced by the G o o gl e E arth prog ram a nd automatically labeled with GPS c oordin a t e s isn’t hearsay

. The hearsay rule applies o nly to out-of-court statements , a nd it defines a statement as “a person’s or a l a s s e rtion, written

as s e r t ion, or n onverbal conduct.” F ed. R. Evid. 801(a) (emphasis added). Here, the relevant assertion isn’t made b y
a person; it’s made by

the Goog le Earth prog

ram. Thoug h a person ty pes in the GPS coordinates
, h e h as no role in fig uring out where the tack w ill be placed. The real work is done by the computer prog ram itself. The prog r am analy z e s the GPS coordinates and, without any human intervention, places a labeled tack o n the s a t e l l i t e imag e. B ecause the prog r am makes the relevant assertion—that the t a c k i s accurately placed at the labeled GPS coordinates—there’s no sta t ement as defined by the hearsay r ule. I n reaching that conclusion, we join other circuits that have held that machine statements aren’t hearsay

. S e e United States v. Lamons ,U N I T E D S T A T E S V

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532 F

. 3d 1 251, 1263 (11th Cir. 2008); United States v. Moon , 512 F

. 3 d 3 5 9
, 362 (7th Cir. 2008); United States v. W ashington
, 498 F .3d 2 25, 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 conc e rns. A machine mig ht malfunction, produce inconsistent results or have been tampered with. Bu t such

concerns are addressed by the rules o f authentic a t i o n, not hearsay

. A u thentication requires the proponent of evidence to show that the evidence “is what the proponent claims it is.” F ed. R. Evid. 901(a). A p roponent must show that a machine is reliable and correctly c alibrated, and that the data put into the machine (here, the GPS coordinates) is accurate. See W ashington
, 498 F .3d at 2 31. A specific s u b section of the authentication rule allows for a uthentication of “a process o r sy stem” with evidence “describing [ th e] p rocess or sy stem and showing that it produces an accurate result.” F ed. 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 g enerated by Goog le Earth” were properly authenticated). So w hen faced with a n authentication objection, the proponent of Goog le-Earth-g e nerated evidence would have to establish Goog le Eart h ’ s reliability a nd accuracy

. That burden could be met, for e x ample, with testimony from a Goog le Earth prog rammer or a witness w ho frequently works with a

nd r elies on the prog ram. See Charles Alan W r ig h t & Victor J ames Gold, Federal Practice & Procedure § 7114 (2000). I t could also be met throug h judicial n otice of the p rog ram’ s reliability
, as the A dvisory Com mittee Notes specifically contemplate. See id. ; F ed. R. Evid. 901 n.9.U N I T E D S T A T E S V

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B u t d efendant didn’t raise an authentication objection at trial, nor does he ra i s e o n e o n a ppeal. He raised o nly a hearsay objection, and that objection was properly o verruled. B ecause the satellite imag e and tack-coordinates pair weren’t hearsay
, their admission also didn’t violate the Confrontation C l ause. See W

ashington
, 498 F .3d at 231; United Sta t e s v

. Mitchell
, 502 F

. 3d 931, 966 (9th Cir. 2007) (“The Confrontation Clause does not apply to non-hearsay

. . . .”).

Defendan t a lso c laims that the p rosecutor committed misconduct and that the d istri c t court erred by a dmitting evidence of multiple prior removals. W e reject those c laims for r easons we ex plain in a memorandum disposition we file concurrently

with this opinion.

AF F IRMED.U N I T E D S T A T E S V

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AP P ENDIX A