UNITED STATES, Appellee 

v. 

Heather D. LUBICH, Electronics Technician Second Class 

U.S. Navy, Appellant 

No. 12-0555 

Crim. App. No. 201100378 

United States Court of Appeals for the Armed Forces 

Argued February 19, 2013 

Decided May 3, 2013 

ERDMANN, J., delivered the opinion of the court, in which BAKER, 

C.J., STUCKY and RYAN, JJ., and EFFRON, S.J., joined. 

Counsel 

For Appellant: Lieutenant Kevin S. Quencer, JAGC, USN (argued). 

For Appellee: Major William C. Kirby, USMC, (argued); Colonel 

Kurt J. Brubaker, USMC, Colonel Stephen C. Newman, USMC, and 

Brian K. Keller, Esq. (on brief). 

Military Judge: Carole J. Gaasch 

This opinion is subject to revision before final publication. 
United States v. Lubich, No. 12-0555/NA 

2

Judge ERDMANN delivered the opinion of the court. 

At a special court-martial with members, Electronics 

Technician Second Class (ET2) Heather D. Lubich was convicted, 

contrary to her pleas, of one specification of attempted 

larceny; one specification of wrongfully and knowingly 

transferring, possessing, or using a means of identification of 

another person; and one specification of impersonating a 

commissioned officer with the intent to defraud; in violation of 

Articles 80 and 134, Uniform Code of Military Justice (UCMJ), 10 

U.S.C. §§ 880, 934 (2006). The convening authority approved the 

sentence of forty-five days confinement, forfeiture of $1,300 

pay per month for two months, reduction to E-3, and a badconduct discharge. The United States Navy-Marine Corps Court of 

Criminal Appeals (CCA) affirmed the findings and sentence. 

United States v. Lubich, No. NMCCA 201100378, 2012 CCA LEXIS 

767, at *9 (N-M. Ct. Crim. App. Apr. 19, 2012). 

Military Rule of Evidence (M.R.E.) 901(a) provides that 

“[t]he requirement of authentication or identification as a 

condition precedent to admissibility is satisfied by evidence 

sufficient to support a finding that the matter in question is 

what its proponent claims.” We granted review in this case to 

determine whether the military judge abused her discretion when 

she overruled a defense authentication objection and admitted 
United States v. Lubich, No. 12-0555/NA 

3

two Government exhibits which were based on computerized data.1 

We hold that the military judge did not abuse her discretion and 

affirm the decision of the CCA. 

Background

The charges against Lubich were based on allegations that 

she impersonated her supervisor, a commissioned officer, by 

using his name, personal information and Leave and Earnings 

Statement (LES), to apply for a $10,000 loan from Omni 

Financial, Inc. via the Internet. In the course of the 

investigation, the Naval Criminal Investigative Service (NCIS) 

made a request to the Information Assurance Department of the 

Navy-Marine Corps Intranet (NMCI) for Lubich’s Internet account 

data. NMCI downloaded the requested data on six CD-ROMs and 

sent the discs to NCIS. 

At trial, Erik Schmidt, a cyber forensic examiner with 

NCIS, testified that he conducted a forensic examination of the 

six CD-ROMs provided by NMCI utilizing automated forensic tool 

 

1

 We granted review of the following issue: 

Whether the military judge erred by overruling defense 

counsel’s foundation and authentication objections and 

admitting computerized data evidence gathered by an 

unnamed Navy-Marine Corps Intranet (NMCI) analyst who 

used an unidentified process with unknown reliability 

to collect data related to Appellant’s network user 

activity. 

United States v. Lubich, 71 M.J. 394 (C.A.A.F. 2012) (order 

granting review). 
United States v. Lubich, No. 12-0555/NA 

4

programs.2 Schmidt’s examination produced two computerized 

reports: Prosecution Exhibit (PE) 19, a report which listed the 

web sites accessed by Lubich’s account and the dates and number 

of times the web sites were accessed; and PE 23, a report that 

compiled the user names and passwords for the web sites accessed 

from Lubich’s Internet account.3

 

Following a brief foundational examination, the Government 

moved for the admission of PE 19. The defense objected on the 

grounds that Schmidt lacked the “requisite personal knowledge to 

authenticate th[e] document” and the military judge convened an 

 

2

 Schmidt utilized EnCase Forensic and AccessData Forensic 

Toolkit. 

3

 PE 19 is titled “Internet Explorer Cookie Index,” and is based 

on the Index.DAT file of Lubich’s account. Schmidt testified 

that “[a] cookie is a text file that is saved on your user’s 

profile from web pages; when you visit the web page, it tracks 

the user’s access.” Schmidt testified that cookies are 

automatically created and stored in a “database type” file 

called Index.DAT. PE 19 is a 179-page report which recounts 

information about hundreds of cookies, such as the “URL,” 

“Filename,” “Last Accessed” date, and “Hits.” Notably, the 

“URL” field for each of the hundreds of cookies reads 

“Cookie:heather.lubich@” followed by the name of the relevant 

web site. Similarly, the “Filename” field for each of the 

hundreds of cookies reads “heather.lubich@,” followed by an 

identifier for the site and the extension “.txt.” PE 23, on its 

face, is a “NTUSER.DAT Registry Report” from the 

“HEATHER_LUBICH” account. Schmidt testified that NTUSER.DAT is 

a Windows Operating System file that holds data for a user 

account profile, and stores saved user names and passwords for 

web sites that the user visited. As printed, the Registry 

Report notes on every page that it is the NTUSER.DAT of the 

HEATHER_LUBICH account. The saved user names and passwords 

noted on the report include, on a number of occasions, Lubich’s 

official Navy e-mail address, her password, and her Social 

Security number. 
United States v. Lubich, No. 12-0555/NA 

5

Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2006), session to 

address the objection. During the Article 39(a) hearing, the 

defense expanded their objection to include a Confrontation 

Clause objection and told the military judge that he had the 

same objections to the admission of PE 23. The authentication 

objection was directed at the data contained on the CD-ROMs 

which had been provided by NMCI. The defense argued that “[The 

data] can’t be authenticated without somebody from NMCI 

testifying to the collection processes that took the data from 

ET2 Lubich’s computers to those six CDs that Mr. Schmidt was 

given a week or two ago.” 

In response to questions from the military judge as to the 

process NMCI utilized to gather the data from Lubich’s Internet 

accounts, Schmidt testified as follows: 

It’s an automated process. They enter the user 

account information in this process which in the 

background will run the search through the server logs 

and then find the computers and then remotely pull the 

folders themselves from the user accounts, the My 

Documents and folder settings -- or section, to the 

work station. He’s actually located over on the East 

Coast out in Washington -- I’m sorry -- Norfolk. He 

will then burn the information to a CD-ROM and then 

ship it Fed Ex to our office. 

The military judge asked if there was “any discretion on the 

part of the person drawing the data, or is it all automated?” 

Schmidt replied, “[t]he only interaction would be burning it 

[to] the CD-ROM itself I think.” On cross-examination during 

the Article 39(a) hearing, Schmidt testified that he had never 
United States v. Lubich, No. 12-0555/NA 

6

worked at NMCI and was not familiar with all the software they 

utilized. When asked whether someone at NMCI had personally 

verified which computers Lubich used, Schmidt responded, “I 

couldn’t tell you. I can’t testify to that.” 

Following Schmidt’s testimony and counsel’s arguments 

regarding authentication and the Confrontation Clause, the 

military judge ruled: 

I believe that argument goes more to the weight of the 

evidence, and you certainly can explore that in crossexamination. The objection is overruled. I find that 

both Prosecution Exhibits 19 and 23 for identification 

have been sufficiently authenticated and that the 

Confrontation Clause is not implicated because we’re 

dealing with an automated process, no conclusions in 

these documents themselves and, again, it’s an 

automated process with very little discretion involved 

on the part of the person that was obtaining the data. 

So Prosecution Exhibits 19 and 23 for identification 

are received into evidence. 

Schmidt’s subsequent testimony, based on the data in PEs 19 

and 23, linked Lubich’s account and her user name and password 

to the loan application which utilized her supervisor’s name, 

Social Security number and LES.4

 On cross-examination, Schmidt 

testified that there was no way to know whether Lubich was 

sitting at her computer at the times when certain data was 

 

4

 PE 19 revealed that someone using Lubich’s account visited the 

web site, “secure.yesomni.com,” the web site of the company to 

which she allegedly sent the loan application in the name of her 

supervisor, fifteen times. PE 19 showed that 

“secure.yesomni.com” was last accessed May 18, 2009. Similarly, 

PE 23 shows that someone using the HEATHER_LUBICH account input 

the Social Security numbers of Lubich and her supervisor into 

“secure.yesomni.com” on March 25, 2009. 
United States v. Lubich, No. 12-0555/NA 

7

entered or if she logged in with her password, then left the 

computer and someone else sat down in her place. He also 

testified that he had not personally accessed the computer hard 

drives to obtain the information on the CD-ROMs and that it was 

possible there was additional information on the hard drives. 

During closing arguments, trial counsel argued that PEs 19 

and 23 provided direct evidence that Lubich stole the victim’s 

identity and used his Social Security number in an attempt to 

obtain a loan from Omni Financial. Lubich was convicted of 

attempted larceny, identity theft, and impersonating a 

commissioned officer with an intent to defraud. The CCA 

affirmed, holding that Schmidt’s descriptions of the processes 

used to download the data to the CD-ROMs properly authenticated 

PEs 19 and 23. Lubich, 2012 CCA LEXIS 767, at *8-*9. 

Discussion

At trial, “the Government bears the burden of establishing 

an adequate foundation for admission of evidence against an 

accused.” United States v. Maxwell, 38 M.J. 148, 150 (C.M.A. 

1993) (citation omitted). “The Government may meet its burden 

of proof with direct or circumstantial evidence.” Id. at 150-

51. On appeal, we review a military judge’s decision to admit 

evidence for an abuse of discretion. United States v. Freeman, 

65 M.J. 451, 453 (C.A.A.F. 2008) (citation omitted). “An abuse 

of discretion occurs when the trial court’s findings of fact are 
United States v. Lubich, No. 12-0555/NA 

8

clearly erroneous or if the court’s decision is influenced by an 

erroneous view of the law.” Id. “‘Further, the abuse of 

discretion standard of review recognizes that a judge has a 

range of choices and will not be reversed so long as the 

decision remains within that range.’” Id. (citation omitted). 

Lubich argues that the military judge erred because Schmidt 

did not establish the reliability, accuracy, or trustworthiness 

of the data NCIS received from NMCI. Lubich urges the court to 

reverse the CCA and suggests we adopt the type of detailed 

analyses for the authentication of computerized data set forth 

in In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005), and 

Lorraine v. Markel, 241 F.R.D. 534 (D. Md. 2007).5 Lubich also 

relies on this Court’s analysis for the authentication of video 

surveillance footage in United States v. Harris, 55 M.J. 433 

(C.A.A.F. 2001), as an example of the type of authentication 

process the court should require for the admission of 

computerized data. Finally, Lubich argues that the admission of 

PEs 19 and 23 was not harmless because the error had a 

substantial influence on the findings. 

 The Government counters that the military judge did not err 

in the authentication of PEs 19 and 23 because she was 

satisfied, by a preponderance of the evidence, that the matter 

 

5

 In re Vee Vinhnee adopted an eleven-step analysis for the 

foundation of computer records. 336 B.R. at 446. Lorraine

cited this eleven-step test in its analysis of the foundational 

requirements for electronic records. 241 F.R.D. at 558. 
United States v. Lubich, No. 12-0555/NA 

9

in question was what it purported to be based on Schmidt’s 

testimony. According to the Government, Lubich’s NMCI account 

data was automatically stored and collected by an NMCI process 

with only minimal human interaction. Finally, the Government 

argues that the fact that Schmidt did not personally collect the 

data goes to its weight, not its admissibility. 

 “The requirement of authentication or identification as a 

condition precedent to admissibility is satisfied by evidence 

sufficient to support a finding that the matter in question is 

what its proponent claims.” M.R.E. 901(a). Evidence may be 

authenticated through the testimony of a witness with knowledge 

“that a matter is what it is claimed to be.” M.R.E. 901(b)(1). 

M.R.E. 901(b)(9) permits evidence resulting from a “process or 

system” to be authenticated via “[e]vidence describing [the] 

process or system used to produce [the] result and showing that 

the process or system produces an accurate result.” 

It is important in this case to identify the basis for the 

defense objection. Authentication simply requires establishing 

that the evidence is what the proponent claims it to be.6

 M.R.E. 

 

6

 Much of the case law addressing the authentication of computer 

data, including the authority relied on by Lubich, see supra p.8 

and note 5, analyzes the requirements of M.R.E. 901 in the 

context of M.R.E. 803(6), the business records exception to the 

rule against hearsay. See, e.g., In re Vee Vinhnee, 336 B.R. at 

444 (“The primary authenticity issue in the context of business 

records is . . . .”); Lorraine, 241 F.R.D. at 542 (“The 

requirement of authentication and identification also insures 

that evidence is trustworthy, which is especially important in 
United States v. Lubich, No. 12-0555/NA 

10

901(a). Here the Government claimed that the data contained on 

the six CD-ROMs was taken from Lubich’s NMCI Internet accounts. 

During argument on the motion, the military judge invited the 

defense counsel to elaborate on the authentication objection. 

Defense counsel responded, “It’s my understanding that the data 

that Mr. Schmidt analyzed came from Petty Officer Lubich’s 

computers at NSAWC.7 I mean, I don’t think there’s any dispute 

about that.” This is significant as the defense recognized that 

the data was from Lubich’s Internet accounts, but nevertheless 

argued that it was necessary to have direct testimony from NMCI 

personnel as to the process utilized by NMCI to collect the 

data. 

In United States v. Blanchard, 48 M.J. 306, 309 (C.A.A.F. 

1998), we noted that the M.R.E. 901 is the same as Fed. R. Evid. 

 

analyzing hearsay issues. Indeed, these two evidentiary 

concepts often are considered together when determining the 

admissibility of exhibits or documents.”). While authentication 

and hearsay are distinct issues, some cases conflate the two or 

use the same facts to address both issues. See In re Vee 

Vinhnee, 336 B.R. at 444 (“Ordinarily, because the business 

record foundation commonly covers the ground, the authenticity 

analysis is merged into the business record analysis without 

formal focus on the question.” (citing 5 Weinstein § 900.06 [2] 

[a])). However, authentication under M.R.E. 901 and 

admissibility as a hearsay exception are distinct inquiries. 

Authenticity is a “condition precedent to admissibility” and 

requires only a prima facie showing that is “sufficient to 

support a finding that the matter in question is what its 

proponent claims.” M.R.E. 901(a). As the business records 

hearsay exemption is not at issue in this case, our analysis 

focuses solely on authentication under M.R.E. 901, and we 

distinguish our analysis from those cases which blend 

authentication and hearsay analyses. 

7

 “NSAWC” is the Naval Strike and Air Warfare Center. 
United States v. Lubich, No. 12-0555/NA 

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901 and embraces the well-established view that authentication 

is a component of relevancy. We stated: 

[I]t requires a preliminary determination by the judge 

that sufficient evidence of authenticity exists to 

present the authenticity question to the members for 

their ultimate factual determination. See generally

United States v. Sliker, 751 F.2d 477 (2d Cir. 1984); 

see Ricketts v. City of Hartford, 74 F.3d 1397, 1411 

(2d Cir. 1996) (judge’s discretion to exclude evidence 

on authenticity ground is limited to deciding whether 

sufficient proof exists for a reasonable juror to 

determine authenticity). It suffices to say that 

these same principles are applicable at courts-martial 

and, accordingly, federal court of appeals decisions 

applying these principles would be most helpful. See

United States v. Richendollar, 22 M.J. 231 (C.M.A. 

1986). 

Id. at 309-10. 

 The process for authentication is more fully discussed in 5 

Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal 

Evidence § 901.02[3], at 901-13 to 901-14 (Joseph M. McLaughlin 

ed., 2d ed. 2003) (footnotes omitted): 

Generally speaking, the proponent of a proffered 

item of evidence needs only to make a prima facie 

showing that the item is what the proponent claims it 

to be. . . . 

Once the proponent has made the requisite 

showing, the trial court should admit the item, 

assuming it meets the other prerequisites to 

admissibility, such as relevance and compliance with 

the rule against hearsay, in spite of any issues the 

opponent has raised about flaws in the authentication. 

Such flaws go to the weight of the evidence instead of 

its admissibility. The trial court’s admission of the 

exhibit means only that the fact finder may consider 

the item of evidence during its deliberations. The 

fact finder remains free to disregard the item if the 

trial evidence overcomes the preliminary showing of 

authenticity. 
United States v. Lubich, No. 12-0555/NA 

12

Weinstein explains “[i]n general, electronic documents or 

records that are merely stored in a computer raise no computerspecific authentication issues. If a computer processes data 

rather than merely storing it, authentication issues may arise.” 

Weinstein & Berger § 900.06[3], at 900-68. 

Schmidt’s testimony satisfied the rules set forth in 

Blanchard and as discussed in Weinstein’s Federal Evidence. 

During the Article 39(a) session, Schmidt explained that he had 

worked in this area for seven years. He described the 

collection process that retrieved the data from Lubich’s account 

on two occasions. First, in response to trial counsel’s 

question about how the data was collected, Schmidt explained: 

The Information Assurance Department reviews server 

logs for the network and verifies from the server logs 

themselves what computers the user account logged 

into. They, in turn -- it’s all an automated process 

-- in turn will go to the computer itself and copy 

that user account’s profile and provide it and burn it 

to CD-ROM. 

Later Schmidt described the automated process in more detail to 

the military judge: NMCI personnel “enter the user account 

information in this process which in the background will run the 

search through the server logs and then find the computers and 

then remotely pull the folders themselves from the user accounts 

. . . to the work station.” He also testified that he verified 

this process with NMCI. 
United States v. Lubich, No. 12-0555/NA 

13

The Government therefore made a prima facie showing of 

authenticity by presenting evidence sufficient to allow a 

reasonable juror to find that data on the six CD-ROMs was data 

from Lubich’s Internet accounts. Schmidt’s testimony 

established that NMCI transferred data stored on the computers 

to the CD-ROMs utilizing an automated process rather than 

analyzing or manipulating the data. See United States v. Tank, 

200 F.3d 627, 630 (9th Cir. 2000) (“‘Any question as to the 

accuracy of the printouts . . . would have affected only the 

weight of the printouts, not their admissibility.’” (alteration 

in original) (quoting United States v. Catabran, 836 F.2d 453, 

458 (9th Cir. 1988))). 

 The Government also met several of the illustrative 

criteria of M.R.E. 901(b): 

M.R.E. 901(b)(1) -– “Testimony of witness with knowledge” 

was satisfied through Schmidt’s familiarity with the NMCI 

procedures; 

M.R.E. 901(b)(4) -– “Distinctive characteristics and the 

like” was satisfied as the computer data contained numerous 

references to Lubich’s personal computer information; 

 

M.R.E. 901(b)(9) -– “Process or system” was satisfied by 

Schmidt’s discussion regarding the NMCI process. 

 

Once this preliminary standard for reliability was 

established, the defense had the opportunity to attack the 

perceived weaknesses in the case through cross-examination of 

Schmidt. Indeed, Lubich’s counsel questioned Schmidt about the 

possibility that someone else was sitting at a computer that 
United States v. Lubich, No. 12-0555/NA 

14

Lubich previously logged onto and entered the information 

without her knowledge. Defense counsel also questioned Schmidt 

about whether any other forensic data was reviewed, whether they 

sought forensic evidence from other individuals, and whether 

there may have been other Internet history data associated with 

the account that could have been deleted from the profile but 

remained on hard drives that were not examined by NCIS. Thus, 

Lubich had the opportunity to confront Schmidt about this 

evidence and attempt to diminish its impact on the members. 

We decline to adopt Lubich’s proposal that we develop a 

detailed authentication analysis for computer data.8

 There are 

numerous scenarios in which this issue will arise and we see no 

benefit in attempting to craft a “standard” test to analyze all 

computer data situations. We will continue to rely on the 

military judge’s discretion to determine authenticity. See

Blanchard, 48 M.J. at 310 (explaining that “[M.R.E.] 104 gives 

discretion to the trial judge as to the manner in which he makes 

preliminary determinations concerning admissibility of evidence” 

and “reject[ing] appellant’s general argument that the military 

 

8

 Lubich’s reliance on Harris is also misplaced. Harris involved 

the authentication of a videotape under M.R.E. 901 utilizing the 

“silent witness” theory. 55 M.J. at 436. There the court 

established the authentication criteria for photos taken by an 

automated camera. Id. at 438-40. That situation differs from 

this case where Lubich concedes that the data was taken from her 

Internet account. 
United States v. Lubich, No. 12-0555/NA 

15

judge erred by failing to strictly follow selected federal 

decisions in making his authenticity determination.”). 

We hold that the military judge did not abuse her 

discretion in admitting PEs 19 and 23. Once these exhibits were 

admitted, it was then up to the members to determine the true 

authenticity and probative value of the evidence based on 

Schmidt’s testimony. 

Decision

 The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed.