          United States Court of Appeals
                      For the First Circuit


No. 11-1275

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                        JAMES M. CAMERON,

                      Defendant, Appellant.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. John A. Woodcock, U.S. District Judge]


                              Before

                 Torruella, Howard, and Thompson,
                          Circuit Judges.


     Peter Charles Horstmann, with whom Partridge, Ankner &
Horstmann, was on brief for appellant.
     Anthony Vitarelli, Assistant United States Attorney, Criminal
Division, Appellate Section, with whom Lanny A. Breuer, Assistant
Attorney General, John D. Buretta, Acting Deputy Assistant Attorney
General, Thomas E. Delahanty II, United States Attorney, and
Margaret D. McGaughey, Assistant United States Attorney, was on
brief for appellee.




                        November 14, 2012
            TORRUELLA, Circuit Judge. Following a bench trial in the

U.S. District Court for the District of Maine, Defendant-Appellant

James M. Cameron ("Cameron") was convicted of thirteen counts for

crimes     involving   child   pornography.    Cameron      now   appeals,

challenging various rulings by the district court before and after

the trial.     The challenged rulings include: (1) the denial of a

motion to dismiss the indictment for insufficiency and for improper

venue, United States v. Cameron (Cameron I), 662 F. Supp. 2d 177

(D. Me. 2009); (2) the denial of a motion to suppress evidence

allegedly seized in violation of the Fourth Amendment, United

States v. Cameron (Cameron II), 729 F. Supp. 2d 418 (D. Me. 2010);

(3) the denial of a motion in limine to exclude certain evidence on

Confrontation Clause grounds, United States v. Cameron (Cameron

III), 733 F. Supp. 2d 182 (D. Me. 2010); and (4) the calculation of

the number of child pornography images attributable to Cameron for

sentencing purposes.

            This case presents complex questions of first impression

in this Circuit regarding the admissibility of evidence in the wake

of the Supreme Court's recent Confrontation Clause jurisprudence.

After careful review, we conclude that the admission of certain

evidence    violated   Cameron's   Confrontation   Clause   rights.    We

further conclude that the admission of this evidence was harmless

as to some counts of conviction (Counts Six, Seven, Nine, Ten,

Twelve, Thirteen, and Fifteen), but not as to others (Counts One,


                                   -2-
Three,    Four,    Five,       Eleven,      and    Fourteen).            We   thus    reverse

Cameron's    convictions         on    certain      counts         and   remand      for    re-

sentencing, or a new trial if the government wishes to so proceed.

                                      I. Background

A. Business and Regulatory Background

            Before delving into the particular facts of Cameron's

case, we recite some background facts regarding the technologies,

business practices, and regulations at issue here.

            During 2006 and 2007, Yahoo!, Inc. ("Yahoo!") offered a

service (which has since been discontinued) called "Yahoo! Photo"

that allowed users to upload photographs to the Internet.                                  Users

could then share photographs with other Yahoo! Photo users.                                 Each

Yahoo! Photo album was linked to a particular Yahoo! "user" or

"account."        In turn, each "account" was designated by a "Login

Name" (sometimes referred to as a "username" or "screen name"),

such as "lilhottee00000," one of the screen names at issue in this

case.     A Yahoo! user might use multiple other Yahoo! services in

addition to Yahoo! Photo, such as email.

            Whenever       a    person      created      a    Yahoo!     account,      Yahoo!

recorded     certain    information,              some       of    which      was    captured

automatically and some of which was entered by the person who

created     the    account.           One    piece       of       information       that     was

automatically collected was the "Registration IP Address," which

was the Internet Protocol ("IP") address from which the account was


                                            -3-
created.1   Yahoo! also automatically recorded the date and time at

which the account was created. Yahoo! recorded this information in

an "Account Management Tool," which it maintained for the life of

a Yahoo! account.       Further, whenever a user logged into a Yahoo!

account, Yahoo! automatically recorded the date and time of the

login as well as the IP address from which the login occurred.

Yahoo! stored this information in a "Login Tracker."            The record

indicates that, during the relevant time period, Yahoo! kept login

records in its Login Tracker for sixty days.

            During the same time period, Google, Inc. ("Google")

provided a service (also since discontinued) called "Google Hello."

Google Hello allowed users to sign in with a username and then chat

and trade photos with other users over the Internet.                 Google

automatically maintained records indicating the times at which a

user logged into and out of Google Hello, as well as the IP address

from which the user accessed the service ("Google Hello Connection

Logs").

            At the relevant time, businesses such as Google and

Yahoo! had (and still have to this day) a duty to report any

apparent    violation    of   federal   child   pornography   laws   to   the

National Center for Missing and Exploited Children ("NCMEC").             See


1
   "An IP address is the unique address assigned to every machine
on the internet. An IP address consists of four numbers separated
by dots, e.g., 166.132.78.215." United States v. Kearney, 672 F.3d
81, 84 n.1 (1st Cir. 2012) (quoting United States v.
Vázquez-Rivera, 665 F.3d 351, 354 n.5 (1st Cir. 2011)).

                                    -4-
42 U.S.C. § 13032(b)(1) (1998) (creating a reporting duty for any

entity "engaged in providing an electronic communication service or

a remote computing service to the public, through a facility or

means of interstate or foreign commerce") (current version at 18

U.S.C. § 2258A(a)(1) (2012)).     NCMEC is a non-profit organization

that receives an annual grant from Congress to perform various

functions related to preventing the exploitation of children.      See

42 U.S.C. § 5773(b) (2012). Among these functions is the operation

of a "cyber tipline to provide . . . electronic service providers

an effective means of reporting" child pornography and other

Internet-related crimes targeting children.       Id. § 5773(b)(1)(P).

NCMEC's "cyber tipline" is called the "CyberTipline."       Once NCMEC

receives a report of a possible child pornography crime via the

CyberTipline,   it   determines   "the   appropriate    international,

Federal, State or local law enforcement agency for investigation"

and forwards the report to that agency.     Id.

B. Yahoo! Reports to NCMEC

          On March 15, 2007, Yahoo! received an anonymous report

that child pornography images were contained in a Yahoo! Photo

account belonging to a user with the username "lilhottyohh."       The

record does not indicate that Yahoo! knew, or ever attempted to

find out, who made the anonymous report.           In response to the

anonymous tip, Yahoo! personnel searched the "lilhottyohh" account




                                  -5-
and discovered images that they believed to be child pornography.

It is not known which Yahoo! employee conducted the search.

           Yahoo!   had   an    established    process   for   dealing   with

reports   of   child    pornography.      If   Yahoo!    learned   of    child

pornography in an account, an employee in Yahoo!'s Customer Care

Department temporarily removed the content from public view and

reviewed it.    If he or she determined that the account contained

child pornography, Yahoo! deactivated the account and notified the

Legal Department.      Meanwhile, the Customer Care Department created

an archive of all the images associated with the account, including

the date and time each image was uploaded and the IP address from

which it was uploaded.         If the Legal Department agreed that any

images were child pornography, it then sent an electronic report to

NCMEC via the CyberTipline. Each report ("Yahoo! CP Report" or "CP

Report") listed a "Suspect Screen Name," a "Suspect Email Address,"

a "Suspect URL,"2 and a "Suspect IP Address."              The "Suspect IP

Address" was the IP address that Yahoo! "associated" with the user;

it is not clear from the record whether this IP address was the

"Registration IP Address" stored in the Account Management Tool, or



2
   For the purposes of this case, we understand a Uniform Resource
Locator ("URL") to be the string of characters that specifies the
location of a document on the Internet. For example, the URL for
the First Circuit's website (at the time of this writing) is
"http://www.ca1.uscourts.gov".     URLs are distinct from IP
addresses. An IP address identifies a particular computer on the
Internet, but that computer might host multiple documents, each of
which might have their own URL.

                                    -6-
if   it   was    some    other     IP    address.     One   could   argue,   as   the

government seemed to do at trial, that it is the IP address from

which the last image was uploaded onto the account, as in some CP

Reports        the     "Suspect     IP    Address"    is    different   from      the

"Registration IP Address" contained in the Account Management Tool

for the same account.             The "Suspect Email Address" was the Yahoo!

email address of the Yahoo! user the CP Report pertained to, and

the "Suspect URL" was the Internet location where the user's photos

could be found.

               Each CP Report also included a table listing the child

pornography images being sent with the report.                 Yahoo! attached to

each report the suspected child pornography images. For each child

pornography image, Yahoo! listed the date and time at which the

image was uploaded and the IP address from which it was uploaded

("Image Upload Data").            In addition, Yahoo attached data from the

Account Management Tool and Login Tracker to each CP Report.

Whenever Yahoo! sent a CP Report to NCMEC, Yahoo! automatically

stored a receipt. The receipt included a unique number assigned to

the report by NCMEC and a record of what Yahoo! reported to NCMEC,

including the attachments to the CP Report.

               In this case, Yahoo! sent a CP Report of the child

pornography in the "lilhottyohh" account to NCMEC.                   Subsequently,

Yahoo! sent additional CP Reports to NCMEC of child pornography

found     in     the     accounts        of   the   users   "lilhottee0000"       and


                                              -7-
"harddude0000."         All three CP Reports listed the same "Suspect IP

Address": 76.179.26.185.

C. ICAC Seizes Cameron's Computers

             On August 3, 2007, NCMEC sent a report ("CyberTipline

Report") of child pornography found in the "lilhottee00000" Yahoo!

account to the Maine State Police Internet Crimes Against Children

("ICAC") unit.      NCMEC later sent another CyberTipline Report to

ICAC, this time regarding child pornography found in the Yahoo!

Photo account of user "harddude0000."            Both CyberTipline Reports

listed     the   same    IP   Address,    76.179.26.185,    in    the   "Suspect

Information" section.           Each report also noted that "[t]he IP

included in this report is the most recent file or image upload IP

available," and then listed the date and time of the most recent

upload.3

             ICAC detective Laurie Northrup ("Northrup") determined

that the IP address 76.179.26.185 was part of a pool of IP

addresses that Time Warner, an Internet Service Provider ("ISP"),

distributed to its Internet access customers.              Through a subpoena

to   Time    Warner,      Northrup   determined    that     the    IP    address


3
   Moreover, the IP Address contained in each of the CyberTipline
Reports matched the "Suspect IP Address" contained in its
corresponding Yahoo! CP Report, although we do not know whether
this is by pure coincidence or if both IP Addresses really refer to
the computer that originated the most recent image upload. As we
mentioned earlier, the Yahoo! CP Reports did not state whether the
"Suspect IP Address" contained therein was the one from which the
most recent image had been uploaded, a representation which was in
fact made by in the CyberTipline Reports.

                                         -8-
76.179.26.185      had    been    assigned       to   the   Cameron      residence     in

Hallowell, Maine during the relevant time periods. On December 21,

2007, Maine      police    executed        a   search   warrant     at    the   Cameron

residence.       Officers found four computers at the residence: a

Compaq desktop, a Dell laptop, an HP desktop with an external hard

drive, and an eMachines desktop with an external hard drive.                         ICAC

also executed a search warrant at Cameron's workplace and seized

his   office     computer.        ICAC's       preliminary    examination       of    the

computers in Cameron's home (conducted on site) indicated possible

child pornography         on    the   HP   desktop.         This   examination       also

indicated that certain Yahoo! accounts had been accessed from the

eMachines computer.            Northrup later requested information from

NCMEC related to these accounts.

            In    March    of    2008,     forensic     examiner      Scott     Bradeen

("Bradeen") examined Cameron's five computers and external hard

drives.    For each computer, Bradeen determined the IP addresses

from which the computer had accessed the Internet.                       Bradeen found

evidence that someone had accessed seventeen different Yahoo!

accounts, including those that were the subject of the reports that

NCMEC originally sent to ICAC, from various computers in Cameron's

home.     In addition, Bradeen found child pornography images and

transcripts indicating that someone using Cameron's computers had

signed into Google Hello using one or more usernames to send and

receive child pornography images.                Bradeen found child pornography


                                           -9-
images on Cameron's Dell laptop and on his HP desktop.                          Bradeen

found   no   child   pornography        on   the   Compaq     desktop      or    on   the

eMachines desktop.          However, the Internet history stored on the

eMachines    desktop    showed    that       someone    had    executed         Internet

searches for terms related to child pornography.

D. ICAC Search Warrants to Yahoo! and Google

             ICAC subsequently served search warrants on Yahoo! for

information about the Yahoo! accounts that had been accessed from

Cameron's computers.         The data produced by Yahoo! in response to

the search warrants included emails that had been sent to and from

those   accounts.      The     emails    indicated     that    on     at    least     one

occasion, someone using the "harddude0000" Yahoo! account sent

child pornography to another individual via email and received

child pornography via email in response.               Yahoo! also produced the

receipts of its Yahoo! Reports to NCMEC, the "Account Management

Tool," and the "Login Tracker" for each account; however, it is not

clear if Yahoo! produced the Image Upload Data.                       In addition,

Yahoo! produced disks containing images of child pornography found

in the accounts in question.

             ICAC    also    served      search    warrants      on        Google     for

information regarding the Google Hello accounts accessed from

Cameron's computers. In response, Google provided the Google Hello

Connection Logs for the specified user accounts.




                                        -10-
E. Indictment and Pre-Trial Proceedings

            On February 11, 2009, a federal grand jury indicted

Cameron on sixteen counts of child pornography-related crimes. The

counts   included    ten    counts    of     knowingly     transporting      child

pornography   in    violation    of     18     U.S.C.    §§    2252A(a)(1)     and

2256(8)(A); four counts of knowingly receiving child pornography in

violation of 18 U.S.C. §§ 2252A(a)(2) and 2256(8)(A); and two

counts of knowingly possessing child pornography in violation of 18

U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A).                  Each of the counts

recited a specific date on which Cameron allegedly transported,

received, or possessed child pornography.                Of the ten counts of

transporting child pornography, seven alleged the uploading of

child pornography images to Yahoo! Photo accounts; two alleged the

sending of child pornography via Google Hello; and one alleged both

the uploading of child pornography to Yahoo! Photos and the sending

of child pornography via Google Hello.               Of the four counts of

receiving   child    pornography,      three    alleged       that   Cameron   had

received child pornography via Google Hello, and one alleged that

Cameron had received child pornography via a Yahoo! email account.

All of the transportation counts alleging uploads to Yahoo! Photo

specified   the    Yahoo!   usernames      Cameron      allegedly    used.     The

indictment further alleged that all of the crimes charged occurred

in the District of Maine.




                                      -11-
           Cameron filed three motions prior to trial that are

relevant to this appeal.       First, on May 18, 2009, Cameron moved to

dismiss all counts of the indictment.             See Cameron I, 662 F. Supp.

2d at 179.    Cameron made a host of arguments, two of which demand

our   attention   here.      The   first    was    that    all   counts    of   the

indictment    should   be    dismissed     for     insufficient        pleading.

Specifically, Cameron argued that dismissal was warranted because

the indictment did not specify the images that were alleged to be

child pornography.     Id. at 180.      The district court rejected this

argument, holding that the indictment satisfied the First Circuit's

specificity    requirement    because      each    count    of   the   indictment

tracked the statutory language and set forth the elements of the

offense.     Id. at 181 (citing United States v. Sepúlveda, 15 F.3d

1161, 1192 (1st Cir. 1993); United States v. Serino, 835 F.2d 924,

929 (1st Cir. 1987)).       Cameron also argued that venue in Maine was

improper for three counts because he was not in Maine on the dates

of the alleged offenses.        Id. at 182-183.           The court found that

venue was proper because the indictment alleged that the child

pornography images on which those counts were based had moved into

Maine at some point.        Id. at 183.      See also 18 U.S.C. § 3237(a)

(venue is proper in any district where the offense was started,

continued, or completed).

           Second, on July 2, 2010, Cameron moved to suppress all

evidence resulting from Yahoo!'s searches for child pornography in


                                    -12-
Yahoo! Photo accounts that occurred before Yahoo! received search

warrants from ICAC.         See Cameron II, 729 F. Supp. 2d at 419.

Cameron contended that Yahoo! acted as an agent of the government

when it searched password-protected accounts for child pornography

before reporting to NCMEC. Therefore, Cameron argued, the searches

violated     his   Fourth    Amendment    rights.      Furthermore,    Cameron

contended that because these allegedly illegal searches were the

basis   of   Yahoo!'s   CP    Reports    to   NCMEC,   and   because   NCMEC's

resulting CyberTipline Reports to ICAC started the government's

investigation, all evidence seized by ICAC should be suppressed as

well.

             The district court rejected Cameron's argument because it

found that Yahoo! had not acted as a government agent.            See id. at

422-23. Relying on this court's three-part test from United States

v. Silva, 554 F.3d 13, 18 (1st Cir. 2009), to be discussed further

infra, the district court held that because Yahoo! voluntarily

searched the accounts for its own interests and without direction

by the government, it did not act as a government agent.               Cameron

II, 729 F. Supp. 2d at 423-24.           The court noted that in a similar

case, the Fourth Circuit held that an online email provider did not

act as a government agent when it searched the defendant's emails

for child pornography and reported it to NCMEC. Id. (citing United

States v. Richardson, 607 F.3d 357, 363-67 (4th Cir. 2010)).




                                    -13-
            Finally, also on July 2, 2010, Cameron filed a motion in

limine to exclude all images and other material provided by Yahoo!,

Google, and NCMEC.          Cameron III, 733 F. Supp. 2d at 183.                     The

government   had    indicated       that    it   did   not   intend     to    call    as

witnesses the original authors of the Yahoo! Reports to NCMEC,

NCMEC's CyberTipline Reports to ICAC, or the Yahoo! records that

were attached to the Yahoo! Reports (and then forwarded to ICAC

with the CyberTipline Reports) or produced in response to search

warrants.    Based on this absence of witnesses, Cameron argued that

the introduction of this evidence would violate his rights under

the Confrontation Clause of the Sixth Amendment.                 Id. at 185.4

            The    district    court       denied   Cameron's     motion      without

prejudice.     The court noted that the Confrontation Clause was

implicated    only     if     the     prosecution       sought     to        introduce

"testimonial" statements without making the declarant available for

cross-examination.      Id. at 186 (citing United States v. Figueroa-

Cartagena, 612 F.3d 69, 84 (1st Cir. 2010)).                 However, in Crawford

v. Washington, the Supreme Court suggested that "business records"

were not considered "testimonial."               541 U.S. 36, 56 (2004).        Thus,

the court considered whether the records in question could be

admitted as "business records" under Fed. R. Evid. 803(6).                           The


4
  The government made a similar representation with respect to the
Google records, and Cameron raised a similar challenge. Because
Cameron's argument regarding the Google records was identical to
his argument for the Yahoo! records, the district court focused its
discussion on the Yahoo! records. See id. at 185 n.3.

                                       -14-
court held that as long as the government could successfully

authenticate the Yahoo! records and establish that they were kept

in the ordinary course of business, they would be admissible as

business records, and, therefore, the Confrontation Clause would

not be implicated.    Cameron III, 733 F. Supp. 2d at 188-89.     The

court also ruled that the NCMEC reports and attached images were

admissible as business records because NCMEC simply forwarded

information it received from Yahoo!, information which itself

consisted of business records.    Id. at 189.

F. Trial

            Cameron requested a bench trial, which began on August

16, 2010.    The government voluntarily dismissed one of the two

possession   counts   before   trial.   At   trial,   the   government

introduced evidence from Yahoo! via the testimony of Christian Lee

("Lee"), a Yahoo! employee.    Lee was a Legal Assistant in Yahoo!'s

Legal Compliance Department who had no technical training, but who

testified that he was knowledgeable about Yahoo!'s data retention

and legal procedures.    Lee testified about the information that

Yahoo! kept about its users.      See Part I.A.   In particular, Lee

stated that Yahoo! automatically recorded the data in the Account

Management Tool and the Login Tracker in the regular course of its

business in order to "provide reliable and accurate data about its

customer accounts."     Lee also testified that, as part of its

ordinary business practice, Yahoo! automatically stored a receipt


                                 -15-
of each CP Report it sent to NCMEC, as well as the attachments,

including the Image Upload Data.

           Moreover, despite Cameron's objection, the government

introduced the Account Management Tool data, the Login Tracker

data, and the receipts of Yahoo's CP Reports to NCMEC.                 The

government also introduced compact discs containing the child

pornography found in various accounts and other data, including

emails, produced in response to the search warrants.          However, it

does not appear from the record that the government introduced the

Image Upload Data (or that the government even had this data).5

           The government introduced the Google Hello Connection

Logs   through    the   testimony   of   Google   employee   Colin   Bogart

("Bogart").      Bogart was an employee in Google's Legal Compliance

Department and, like Lee, had no technical training.                 Bogart

testified that he retrieved the Google Hello Connection Logs by

using an internal Google program that allowed him to enter a

username and retrieve the Logs for that username. Bogart testified

that Google recorded this login information automatically and that

it relied on this information for its regular business activities.



5
    The information contained in the Image Upload Data, which
reflected the date and time each child pornography image was
uploaded onto the internet, was central to the government's
case-in-chief, as it was the only evidence it could have relied on
to prove that Cameron uploaded those images on the specific dates
and times alleged in the indictment.     The only other piece of
evidence that partially contained this information was the NCMEC
CyberTipline Reports.

                                    -16-
           The government introduced the NCMEC CyberTipline Reports

through the testimony of John Shehan ("Shehan"), the executive

director of NCMEC. Shehan testified that once a report is received

through the CyberTipline, NCMEC's staff reviews the suspected

images and conducts an online search regarding the provided suspect

information.   According to him, this query is aimed at identifying

the   appropriate    law   enforcement    agency   with   jurisdiction   to

investigate the suspected child pornography activity.              Although

NCMEC   does   not   alter   the   information     it   receives   via   the

CyberTipline in any way -- other than to record a unique "report

ID" and an "entry date," -- Shehan noted that sometimes NCMEC

employees would annotate the CyberTipline Reports with their own

analysis regarding the information contained therein.6

           In the instant case, each time a NCMEC employee finished

processing the information contained in a Yahoo! CP Report, he or

she would create a CyberTipline Report and forward it to the

appropriate law enforcement agency, here the ICAC Unit belonging to

the Maine State Police.        As we briefly described earlier, the

CyberTipline Reports received by ICAC contained several sections,

among them a "Reporting Person Information" section which reflected

Yahoo!'s contact information, as well as a "Suspect Information"

section, which provided the user name, e-mail and IP Address of the


6
   The record reflects that these analyses were apparently blocked
out, redacted or deleted from the CyberTipline Reports that the
government introduced into evidence at trial.

                                   -17-
account associated with the images.          According to the reports

themselves, the IP Address was that of the computer that originated

the most recent image file upload.       It is unclear exactly how NCMEC

extracted this IP Address or how it determined the date and time of

the last image upload, information which also appeared on the

reports.    The only logical conclusion we can draw from the record

is that someone at NCMEC analyzed the Image Upload Data attached to

the Yahoo! CP Reports and selected the IP address from which the

most recent image had been uploaded, along with the date and time

of the upload, and included this information in the CyberTipline

Report. As we will see later on, this is of particular import to

Cameron's argument that the admission of these reports violated his

rights under the Confrontation Clause.

            Armed with these CyberTipline Reports, ICAC detectives

were eventually able to obtain several search warrants against

Cameron's home and office. The government introduced evidence

regarding what ICAC found through these searches via the testimony

of   Bradeen   and   Northrup.   Bradeen    testified about   the   child

pornography he found on Cameron's computers and about the evidence

he found showing that various Yahoo! and Google Hello accounts had

been accessed from those computers.        Bradeen also testified about

the IP addresses from which Cameron's computers had accessed the

Internet.      Some of these IP addresses matched the IP addresses

included in the CyberTipline Reports that NCMEC had created for the


                                  -18-
different Yahoo! accounts.          For example, there was evidence that

all four computers seized at Cameron's home had accessed the

Internet at some point through IP address 76.179.26.185, which was

the IP address listed on CyberTipline Reports for "lilhottee00000"

and "harddude0000."         Bradeen also testified that Cameron's HP

desktop had accessed the Internet through IP address 24.198.90.108,

which the Google Hello evidence showed was an IP address from which

a Google Hello user had logged in to trade child pornography.

            Additionally, the government introduced evidence showing

that, on the specific dates of the transportation and receipt

crimes charged in the indictment, Cameron's computers had been

assigned    the    IP   addresses   from    which    those   crimes   had   been

committed.        For example, through a witness from Time Warner,

Cameron's ISP, the government introduced records showing that the

Time Warner account for Cameron's residence had been assigned

certain    IP   addresses   on   certain    dates.      To   show   that    child

pornography had actually been uploaded on the dates alleged in the

indictment, and to show that it had been uploaded from the IP

address that Cameron had on those dates, the government relied on

the CyberTipline Reports; it does not appear from the record that

the government introduced the Image Upload Data into evidence (or

even that it had this information in the first place).                       The

government also introduced extensive evidence to show that no one

else living in Cameron's household at the time (Cameron lived with


                                     -19-
his wife and two minor children) could have committed the offenses

in the indictment.

           To show that the images alleged to be child pornography

did in fact depict minors, the government relied on the testimony

of Dr. Lawrence Ricci ("Ricci"), a physician and child abuse

expert.    Ricci analyzed the images by determining into which

"Tanner Stage" the persons depicted in the images fell.   There are

five "Tanner Stages" of "secondary sexual development," the first

being Stage I,   at which there is no evidence of such development.

Ricci analyzed the images recovered from Cameron's computers "very

conservatively" and identified as minors only those persons whom he

considered to be at Stage I, even though children generally reach

Stage II between the ages of ten and fourteen.

G. Conviction and Sentencing

           Following the bench trial, the district court found

Cameron guilty of eight counts of transporting child pornography,

four counts of receiving child pornography, and one count of

possessing child pornography.    The court found Cameron not guilty

on two of the transportation counts -- one related to the uploading

of photos to Yahoo! Photo and one relating to the sending of photos

over Google Hello -- because the court could not conclusively find

that the persons in the images connected to those counts were

minors.   Cameron filed a motion for new trial, in which he renewed

his Confrontation Clause arguments, but the district court rejected


                                -20-
that motion.   See United States v. Cameron (Cameron IV), 762 F.

Supp. 2d 152, 159-60, 165 (D. Me. 2011).

           The court sentenced Cameron to 192 months in prison,

followed by ten years of supervised release.          The sentence was

based in part on the court's calculation that Cameron's offenses

involved "at least 300, but fewer than 600" images of child

pornography, which triggered a sentence enhancement under the

United States Sentencing Guidelines ("Guidelines").           See U.S.S.G.

§ 2G2.2(b)(7)(C) (2012).

           Cameron now appeals his conviction and sentence.

                            II. Discussion

           On appeal, Cameron again raises many of the challenges he

made in his pre-trial motions.    First, he argues that the district

court erred in not dismissing all counts of the indictment for lack

of specificity.   Second, he argues that the District of Maine was

not the proper venue for two of the counts of conviction.          Third,

he argues that the district court erred in failing to suppress all

evidence   derived   from   Yahoo!'s    allegedly   illegal    search   of

password-protected Yahoo! accounts.        Fourth, he argues that the

admission of evidence from Yahoo!, Google, and NCMEC violated his

Confrontation Clause rights.    Finally, he argues that his sentence

was erroneous because the district court erred in finding that at

least 300 images were involved.    We address Cameron's arguments in

turn.


                                 -21-
A. Sufficiency of the Indictment

            Cameron    argues     that     the    indictment    is   insufficient

because it fails to identify the specific images that each offense

was based on.       Federal Rule of Criminal Procedure 7(c)(1) states

that an indictment "must be a plain, concise, and definite written

statement of the essential facts constituting the offense charged."

Fed.   R.   Crim.     P.   7(c)(1).         "When    grading    an   indictment's

sufficiency, we look to see whether the document sketches out the

elements of the crime and the nature of the charge so that the

defendant can prepare a defense and plead double jeopardy in any

future prosecution         for   the    same    offense."      United   States    v.

Guerrier, 669 F.3d 1, 3 (1st Cir. 2011).                  The sufficiency of an

indictment is a question of law which we review de novo.                         Id.

(describing question of sufficiency as a "legal issue" to which de

novo review applies).

            We conclude that the indictment was sufficient.                As the

district court correctly noted, each count of the indictment

included the following information: a description of the offense

that tracks the language of the relevant statute, the date of the

offense, the type of child pornography involved (digital images),

and the means by which Cameron either transported (for example, by

uploading   to   a    specified        Yahoo!    Photos   album),    received,    or

possessed the child pornography in question. See Cameron I, 662 F.

Supp. 2d at 180-81.          Cameron's argument that the indictment is


                                         -22-
insufficient because it failed to identify the specific images that

each offense was based on is unavailing.             As the district court

correctly noted, neither the statutes under which Cameron was

charged nor Rule 7(c)(1) itself requires such specificity. See id.

at 180. Thus, we agree with the district court that the indictment

in this case satisfies Fed. R. Crim. P. 7(c)(1)'s requirements.

B. Venue

               Cameron argues that venue in Maine was improper for

Counts Twelve and Thirteen of the indictment because he was in New

York on the dates alleged. Counts Twelve and Thirteen alleged that

on    August    11,   2007,    Cameron     transported   and    received   child

pornography, respectively, using Google Hello. Cameron argues that

since he and his computer were physically located in New York,

venue was only proper in New York.

               "The right to be tried in the appropriate venue is one of

the constitutional protections provided to defendants by the Sixth

Amendment."       United States v. Scott, 270 F.3d 30, 34 (1st Cir.

2001).     As such, "[t]he burden of showing proper venue is on the

government, which must do so by a preponderance of the evidence."

Id.   However, "[w]e review the evidence on venue in the light most

favorable to the government."               Id. at 35.         We review legal

conclusions de novo.          Id. at 34.

               Under 18 U.S.C. § 3237(a) (2012), a crime involving

interstate commerce can be "prosecuted in any district from,


                                      -23-
through, or into which such commerce, mail matter, or imported

object    or    person   moves."      Transporting      and    receiving   child

pornography via Internet services such as Google Hello are both

crimes involving interstate commerce.               See id. § 2252A(a)(1)

(making it illegal to       "transport[]" child pornography "using any

means or facility of interstate or foreign commerce or in or

affecting interstate or foreign commerce by any means, including by

computer"); id. § 2252A(a)(2)(A) (making it illegal to receive "any

child pornography that has been mailed, or using any means or

facility of interstate or foreign commerce shipped or transported

in or affecting interstate or foreign commerce by any means,

including by computer").           In addition, the district court found

from the evidence at trial that the child pornography images

Cameron   sent     and   received   while    in   New   York   were   stored   on

Cameron's Dell Laptop, which he later brought back to Maine. Thus,

because the objects of Cameron's commerce moved into the District

of Maine, venue there was proper.

               We further note that finding venue in Maine is consistent

with the purpose of the Constitution's venue protection, which is

to "ensure[] that a criminal defendant cannot be tried in a

distant, remote, or unfriendly forum solely at the prosecutor's

whim."    United States v. Salinas, 373 F.3d 161, 164 (1st Cir.

2004).    Since Cameron lives in Maine, the District of Maine cannot




                                      -24-
be "distant" or "remote" for him, and there is no evidence that the

District Court was an "unfriendly" forum.

C. Motion to Suppress

           Cameron argues that the district court erred in denying

his motion to suppress evidence.        He posits that Yahoo!'s search

for child pornography in password-protected accounts violated the

Fourth   Amendment   because   Yahoo!    acted   as    an   agent   of   the

government.   Cameron further contends that, because the Yahoo! CP

Reports to NCMEC were the result of Yahoo!'s search, and because

NCMEC sent CyberTipline Reports to ICAC after receiving Yahoo!'s

reports, all subsequent searches executed by ICAC at Cameron's home

or executed via search warrants served on Yahoo! and Google derived

from Yahoo!'s original illegal searches. Thus, Cameron argues, all

evidence obtained as a result of searches conducted during ICAC's

investigation should have been suppressed.

           In reviewing the denial of a motion to suppress evidence,

this court reviews the facts "in the light most favorable to the

district court's ruling," and will review any "findings of fact and

credibility determinations for clear error."            United States v.

Camacho, 661 F.3d 718, 723 (1st Cir. 2011) (internal quotation

marks and citation omitted). "'A clear error exists only if, after

considering all the evidence, we are left with a definite and firm

conviction that a mistake has been made.'"            Id. (quoting United

States v. McCarthy, 77 F.3d 522, 529 (1st Cir. 1996)).          "[W]e will


                                 -25-
uphold a denial of a motion to suppress if any reasonable view of

the evidence supports it."        Id.       (internal quotation marks and

citation omitted).       However, "[w]e review de novo the district

court's conclusions of law, including its application of the law to

the facts."     Id. at 724.      "The appellant bears the burden of

showing a violation of his Fourth Amendment rights."            Id.

            The Fourth Amendment states that the "right of the people

to be secure in their persons, houses, papers and effects, against

unreasonable searches and seizures, shall not be violated."              U.S.

Const. amend. IV.    "The Supreme Court has consistently construed

the Fourth Amendment protection as limiting only governmental

action." United States v. Momoh, 427 F.3d 137, 140 (1st Cir. 2005)

(internal quotation marks and citation omitted).                The Fourth

Amendment   does   not   apply   "to    a   search   or   seizure,    even   an

unreasonable one, effected by a private individual not acting as an

agent of the Government or with the participation or knowledge of

any governmental official."       United States v. Jacobsen, 466 U.S.

109, 113 (1984) (emphasis added) (internal quotation marks and

citation omitted).

            A private search only implicates the Fourth Amendment if

the private party acts as a "government agent." Silva, 554 F.3d at

18. In Silva, we established that in determining whether a private

party has acted as a government agent, courts must consider three

factors: (1) "the extent of the government's role in instigating or


                                   -26-
participating in the search"; (2) "[the government's] intent and

the degree of control it exercises over the search and the private

party"; and (3) "the extent to which the private party aims

primarily to help the government or to serve its own interests."

Id. (internal quotation marks and citation omitted).                We will not

find that a private party has acted as an agent of the government

"simply because the government has a stake in the outcome of a

search."    Id.

            Here, as to the first Silva factor, there is no evidence

that the government had any role in instigating or participating in

the search.       Yahoo! began searching Cameron's accounts after it

received an anonymous tip regarding child pornography in the Yahoo!

Photo album of user "lilhottyohh."             There is no evidence that the

person who sent this tip to Yahoo! was a government employee.

Cameron    contends      that   the   Yahoo!   employees   who     searched     his

accounts   likely     had   "strong    connections    to   law   enforcement."

However, this contention is rank speculation on Cameron's part,

with no support in the record.

            As to the second Silva factor, there is no evidence that

the Government exercised any control over Yahoo! or over the

search.    As discussed above, Yahoo! employees conducted the search

pursuant to Yahoo!'s own internal policy. Furthermore, there is no

evidence that      the    Government    compelled    Yahoo!   in    any   way    to

maintain such a policy.         Cameron points to the fact that Yahoo had


                                       -27-
a duty under federal law to report child pornography to NCMEC in

August of 2007.       See 42 U.S.C. § 13032(b)(1) (repealed 2008).

However, the statute did not impose any obligation to search for

child pornography, merely an obligation to report child pornography

of which Yahoo! became aware.

           Finally, as to the third Silva factor, it is certainly

the case that combating child pornography is a government interest.

However, this does not mean that Yahoo! cannot voluntarily choose

to have the same interest.            As discussed above, there is no

evidence that the government instigated the search, participated in

the search, or coerced Yahoo! to conduct the search.                Thus, if

Yahoo!   chose   to   implement   a    policy   of    searching    for   child

pornography, it presumably did so for its own interests.                   The

record does not reflect what Yahoo!'s interests might have been,

but it is Cameron's burden to show that Yahoo! did what it did to

further the government's interest, and he can point to no evidence

to carry this burden.

           Having applied the Silva factors, we conclude that Yahoo!

was not acting as an agent of the government; therefore, its

searches   of    Cameron's   accounts    did    not   violate     the    Fourth

Amendment.   Because there was no Fourth Amendment violation, there

was no reason to suppress any evidence that may have derived from

Yahoo!'s initial searches.        For this reason, we hold that the




                                  -28-
district    court    properly    denied    Cameron's     motion   to    suppress

evidence.

D. Confrontation Clause

            Cameron next argues that the district court's admission

of evidence obtained from Yahoo!, Google, and NCMEC violated his

Confrontation Clause rights.            Although Cameron's brief does not

make clear which specific records he believes should not have been

admitted, he does specify that he is not challenging the admission

of those child pornography images that Yahoo provided in response

to search warrants. We thus presume that Cameron's challenge is to

the following categories of evidence: (1) the Yahoo! Account

Management Tool and Login Tracker data -- this data was attached to

the   CP   Reports   and   was   also    produced   in   response      to   search

warrants; (2) electronic receipts of Yahoo's CP Reports to NCMEC --

these receipts were produced by Yahoo! in response to search

warrants; (3) NCMEC's CyberTipline Reports to ICAC; and (4) the

Google Hello Connection Logs.7


7
   Cameron makes no coherent challenge to the admission of the
emails produced in response to the search warrants served on
Yahoo!. Cameron appears to lump these in with the other Yahoo!
records. However, as the district court recognized, the emails may
be in a legally distinct category from the other records, because
they could be viewed as statements attributable to Cameron
directly.   See Cameron III, 733 F. Supp. 2d at 185 (noting
government's argument that "statements attributable to the
defendant in the Yahoo! records and emails are not hearsay because
a party's own statement is directly admissible against him")
(internal quotation marks and citation omitted). Cameron has not
explained to this court how any of his Confrontation Clause
arguments relate to the emails; for this reason, we deem any

                                        -29-
            We review de novo a district court's decision that the

admission of various exhibits did not violate the Confrontation

Clause. See United States v. Mitchell-Hunter, 663 F.3d 45, 49 (1st

Cir. 2011).

            1. Confrontation Clause Principles

            "The Sixth Amendment's Confrontation Clause confers upon

the accused in all criminal prosecutions . . . the right . . . to

be confronted with the witnesses against him."           United States v.

Phoeun Lang, 672 F.3d 17, 21 (1st Cir. 2012) (quoting Bullcoming v.

New Mexico, 131 S. Ct. 2705, 2713 (2011)) (internal quotation marks

omitted).      In    Crawford,   the   Supreme   Court   held   that   the

Confrontation Clause bars the admission of "testimonial statements

of witnesses absent from trial," unless the witness is unavailable

to   testify   and   the   defendant   had   a   prior   opportunity   for

cross-examination.     541 U.S. at 59.    Two years later, in Davis v.

Washington, the Court held that Crawford's prohibition "applies

only to testimonial hearsay."      Davis v. Washington, 547 U.S. 813,

823-24 (2006) (emphasis added).8       Thus, "the threshold question in


challenge to the emails waived. See Rodríguez v. Municipality of
San Juan, 659 F.3d 168, 175 (1st Cir. 2011) ("[W]e consider waived
arguments confusingly constructed and lacking in coherence . . .
Judges are not mind-readers, so parties must spell out their issues
clearly, highlighting the relevant facts and analyzing on-point
authority.") (internal quotation marks and citations omitted).
8
   Hearsay is defined as a statement made out of court, by a
person, which is offered into evidence to prove the truth of the
matter asserted. Fed. R. Evid. 801(c); United States v. Benítez-
Ayala, 570 F.3d 364, 367 (2009).

                                   -30-
every case is whether the challenged statement is testimonial. If

it   is   not,   the   Confrontation   Clause   has   'no   application.'"

Figueroa-Cartagena, 612 F.3d at 85 (quoting Whorton v. Bockting,

549 U.S. 406, 420 (2007)).

            The Supreme Court has yet to supply a "comprehensive

definition of 'testimonial.'"          Lang, 672 F.3d at 22 (quoting

Crawford, 541 U.S. at 822); see also Davis, 547 U.S. at 822

(deciding narrow issues before the Court "[w]ithout attempting to

produce an exhaustive classification of all conceivable statements

. . . as either testimonial or nontestimonial").               The Court in

Crawford, however, provided an "illustrative list of the 'core

class of testimonial statements.'"         Lang, 672 F.3d at 22 (quoting

Crawford, 541 U.S. at 51).         This list included "statements that

were made under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for use

at a later trial."        Crawford, 541 U.S. at 52 (internal quotation

marks omitted).        On the other hand, the Court also indicated that

certain types of statements "by their nature [are] not testimonial

-- for example, business records or statements in furtherance of a

conspiracy," and therefore do not implicate the Confrontation

Clause.    Crawford, 541 U.S. at 56.

            Relying on Crawford, we have held in a number of cases

that business records -- or their close counterpart, public records

of non-law enforcement government agencies -- are admissible absent


                                    -31-
confrontation. See, e.g., Lang, 672 F.3d at 22-23 (holding that an

immigration document was not testimonial because an objectively

reasonable person would not have understood the form to be used in

prosecuting the defendant at trial); United States v. De La Cruz,

514 F.3d 121, 133 (1st Cir. 2008) (concluding that autopsy report

was "in the nature of a business record" and thus admissible

without confrontation); United States v. García, 452 F.3d 36, 41-42

(1st Cir. 2006) (affirming admission of warrant of deportation in

defendant's immigration file).

             However, although the Supreme Court seemed to indicate in

Crawford that business records are not testimonial "by their

nature," 541 U.S. at 56, the Court later indicated that this is not

necessarily the case for all business records. In Meléndez-Díaz v.

Massachusetts, the prosecutor sought to admit "certificates of

analysis" that showed that a substance found in the defendant's

possession     was   cocaine.    557   U.S.   305,   308    (2009).      The

certificates were sworn to by analysts at a state laboratory.           Id.

The trial court allowed the certificates, even though the forensic

analysts who tested the substance did not testify.              Id. at 309.

The Supreme Court ruled that the admission of these certificates

violated the Confrontation Clause because they fell into the "'core

class   of    testimonial   statements'"   identified      in    Crawford.

Meléndez-Díaz, 557 U.S. at 310 (quoting Crawford, 541 U.S. at 51).

The Court found that the certificates were effectively affidavits,


                                  -32-
and that they had clearly been "'made under circumstances which

would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial.'" Id.

(quoting Crawford, 541 U.S. at 52).

           In    finding   that    the    admission      of   the   certificates

violated   the    Confrontation     Clause,      the    majority    rejected    the

argument that the certificates could be admitted as business

records.   Although the majority found that the certificates "[did]

not qualify as business records," they held that even if the

certificates were business records, "their authors would be subject

to confrontation nonetheless."           Id. at 321.     The majority observed

that although "[d]ocuments kept in the regular course of business

may ordinarily be admitted at trial despite their hearsay status,"

this would not be so "if the regularly conducted business activity

is the production of evidence for use at trial."                     Id. at 321

(emphasis added).        As the majority explained, "[b]usiness and

public records are generally admissible absent confrontation not

because they qualify under an exception to the hearsay rules, but

because --      having   been   created    for    the    administration    of    an

entity's affairs and not for the purpose of establishing or proving

some fact at trial -- they are not testimonial."                     Id. at 324

(emphasis added).        Thus, because the certificates at issue in

Meléndez-Díaz     had    been     "prepared      specifically       for   use    at

petitioner's trial," the court held that "[w]hether or not they


                                     -33-
qualif[ied] as business records," they were inadmissible unless

their authors could be cross-examined. Id.; cf. Bullcoming, 131 S.

Ct. at 2720 ("'[D]ocuments kept in the regular course of business

may ordinarily be admitted at trial despite their hearsay status,'

except    'if   the   regularly     conducted   business   activity   is   the

production of evidence for use at trial.' In that circumstance, the

hearsay rules bar admission of even business records.") (Sotomayor,

J., concurring) (internal citation omitted) (quoting Meléndez-Díaz,

557 U.S. at 321).

            Returning to the facts of this case, even if the records

at issue here are business records, as the government argues, we

must still determine whether or not they are testimonial.                  See

United States v. Pursley, 577 F.3d 1204, 1223 (10th Cir. 2009),

cert. denied, ___ U.S. ___, 130 S. Ct. 1098 (2010) ("[E]ven if a

statement qualifies for an exception to the hearsay doctrine --

based upon judicially fashioned reliability principles -- the

statement's admission may violate the Sixth Amendment's               mandate

for 'confrontation'       if   it   constitutes   'testimonial' hearsay."

(citing Crawford, 541 U.S. at 61-62; Meléndez-Díaz, 129 S. Ct. at

2533)).     "To rank as 'testimonial,' a statement must have a

'primary    purpose'     of    'establishing    or   proving   past    events

potentially relevant to later criminal prosecution.'"           Bullcoming,

131 S. Ct. at 2714 n.6 (quoting Davis, 547 U.S. at 822).                   "In

identifying the primary purpose of an out-of-court statement, we


                                      -34-
apply an objective test."     Williams v. Illinois, 132 S. Ct. 2221,

2243 (2012) (plurality opinion).

           With these principles in mind, we proceed to determine

whether the records Cameron challenges are testimonial in nature.

           2. Yahoo! Account Management Tool, Yahoo! Login Tracker,
           and Google Hello Connection Logs

           It is clear that the admission of the Yahoo! Account

Management Tool data, the Yahoo! Login Tracker data, and the Google

Hello Connection Logs did not violate the Confrontation Clause.

Lee, the Yahoo! witness, testified that all of the data in the

Account Management Tool and the Login Tracker was data that Yahoo!

collected automatically in order to further its business purposes.

Bogart,   the   Google   witness,   testified   in   a    similar     fashion

regarding the Google Hello Connection Logs.          Although "Crawford

analysis generally requires a court to consider two threshold

issues: (1) whether the out-of-court statement was hearsay, and (2)

whether the out-of-court statement was testimonial," United States

v. Earle, 488 F.3d 537, 542 (1st Cir. 2007), we dispense with the

first issue because, even assuming arguendo that the documents in

question contain    hearsay   statements,   the   same     are   in   no   way

testimonial.    As the government argues, these documents squarely

conform to the requirements outlined by the Federal Rules of

Evidence for business records: (1) they were made at or near the

time of the event; (2) kept in the regular course of business; and

(3) created in the regular course of business.           See Fed. R. Evid.

                                    -35-
803(6).9   Thus, we agree with the government that the Account

Management Tools and the Login tracker were business records of

Yahoo!, and the Google Hello Connection Logs were business records

of Google.10


9
    Rule 803(6) provides that "[a] record of an act, event,
condition, opinion, or diagnosis" is admissible despite its hearsay
status if:

     (A) the record was made at or near the time by -- or from
     information transmitted by -- someone with knowledge;
     (B) the record was kept in the course of a regularly
     conducted   activity   of   a  business,   organization,
     occupation, or calling, whether or not for profit;
     (C) making of the record was a regular practice of that
     activity;
     (D) all these conditions are shown by the testimony of
     the custodian or another qualified witness . . .; and
     (E) neither the source of information or the method or
     circumstances of preparation indicate a lack of
     trustworthiness.
10
   Rule 803(6) also requires that the records be introduced through
the testimony of a "custodian or other qualified witness," and that
neither the "source of information nor the method or circumstances
of preparation" can "indicate a lack of trustworthiness." Cameron
protests that Lee and Bogart were not engineers, had no knowledge
of the technical details of Yahoo!'s or Google's systems,
respectively, and were not the ones who prepared the records.
However, when dealing with computerized records under Rule 803(6),
"it is not required that the qualified witness be a computer
programmer . . . or that she be the person who actually prepared
the record." United States v. Moore, 923 F.2d 910, 915 (1st Cir.
1991) (internal quotation marks and citation omitted). The rule
simply requires that the witness be "one who can explain and be
cross-examined concerning the manner in which the records are made
and kept," Wallace Motor Sales v. American Motors Sales Corp., 780
F.2d 1049, 1061 (1st Cir. 1985), and Lee and Bogart satisfied this
requirement. As for the trustworthiness of the records, we have
held that "the ordinary business circumstances described [by the
qualified witness] suggest trustworthiness at least where
absolutely nothing in the record in any way implies lack thereof."
Moore, 923 F.2d at 915 (internal citation omitted). Such is the
case here, since there is no evidence in the record that Yahoo!'s

                               -36-
             Moreover, it is clear that none of these records are the

type    of   "testimonial"       business     records    that     might     cause

Confrontation Clause concerns under Meléndez-Díaz.               Lee testified

that Yahoo! kept the Account Management Tool and Login Tracker data

in order to serve business functions that were totally unrelated to

any trial or law enforcement purpose: namely, to provide reliable

data    about   its   customer    accounts.       Bogart      provided    similar

testimony regarding Google's need for the Google Hello Connection

Logs. Thus, applying an "objective test," Williams,               132 S. Ct. at

2243, we find that the "primary purpose" of collecting this data

was not to "establish[] or prov[e] past events potentially relevant

to later criminal prosecution."             Bullcoming, 131 S. Ct. at 2714

n.6.    We therefore conclude that the district court did not err in

admitting the Yahoo! Account Management Tool evidence, the Yahoo!

Login   Tracker   evidence,      or   the    Google   Hello    Connection    Logs

evidence.

             3. Receipts of Yahoo! CP Reports

             We are not convinced that the same can be said for the

receipts of the Yahoo! CP Reports.               As Lee testified, Yahoo!

created CP Reports in the ordinary course of its business.                Yahoo!

also kept receipts of those Reports, which were essentially copies

of the Reports, in the ordinary course of its business.                  Thus, in

analyzing whether the receipts of the CP Reports are testimonial,


or Google's data recording systems were flawed in any way.

                                      -37-
we consider whether the CP Reports themselves -- of which the

receipts are simply computer-generated copies -- are (1) out-of-

court hearsay statements, and (2) whether these statements are

testimonial.    Earle, 488 F.3d at 542.

            In order to constitute hearsay, the CP Reports must be:

(1) statements made out of court, (2) by a person, and (3) offered

into evidence to prove the truth of the matter asserted.           Fed. R.

Evid. 801(b) and (c).        As to the first prong, we have no trouble

finding that the CP Reports are out-of-court statements, as they

are written assertions, made outside of the courtroom, containing

information    on   screen   names   that   Yahoo!   has   associated   with

potential child pornography. We also find that the second prong is

met as the CP Reports were made by a person, as Lee himself

testified that they were made by a person with knowledge of their

contents.    According to Lee, someone at Yahoo!'s Legal Department

reviews an archive of the images featured in the suspect's account,

removes those that do not appear to contain child pornography, and

includes the rest in the CP Report addressed to NCMEC.            Although

the receipts of the CP Reports in question do not appear to be

signed by any Yahoo! employee in particular, we believe it to be

evident from Lee's testimony that the CP Reports were authored by

an employee in the Legal Department.         Lee himself testified that

part of his duties at Yahoo! included preparing these CP Reports.

Therefore, the CP Reports as a whole are statements made by a


                                     -38-
person, who intended those statements to be taken as true, and

subsequently acted on, by NCMEC.      As we will explain infra, this is

the case despite the fact that some of the information contained in

the CP Reports was generated automatically by Yahoo!'s different

retrieval tools.

          Lastly, we conclude that the receipts of the CP Reports

were introduced at trial to prove the truth of at least some of the

matters asserted in them.    The government sought to introduce this

evidence to establish a link between the "Suspect IP Address"

contained in the CP Reports and Cameron.           The prosecution was

seemingly operating under the impression that this IP address was

the one from which the most recent image of child pornography had

been   uploaded,   even   though,     as   previously   explained,   this

association is not readily apparent from the documents themselves.

Consequently, we can only infer that it was the government's intent

to use this evidence to link Cameron to the specific IP addresses

from which child pornography images were uploaded into the Yahoo!

accounts, and not just to support the proposition that said IP

addresses were the ones from which Cameron registered the accounts

at Yahoo!.   To establish the latter, the government could have

simply relied on the Yahoo! Account Management Tool, the admission

of which we have just held did not implicate the Confrontation

Clause.




                                    -39-
            The   district   court   apparently   went   along   with   this

characterization of the CP reports when it decided to admit their

receipts into evidence.       In doing so, the court went through a

three-step logical sequence aimed at ultimately linking Cameron to

the IP addresses and the Yahoo! screen names used to upload the

images, just as the government had proposed.         First, the district

court used the receipts of the CP Reports to link the Yahoo! screen

names to the IP addresses from which the suspect images were

uploaded.    Second, the district court used the NCMEC CyberTipline

Reports to make the connection between these IP addresses and the

crime of uploading child pornography images, by examining the

images attached to these reports and making a preliminary finding

that they portrayed child pornography as defined in federal law.11

Lastly, the court found that the incriminating IP addresses were

linked to Cameron based on the evidence obtained from sources such

as "eBay", "PayPal" and the "Military Watch Forum" website, which

evinced that Cameron had used those same IP addresses to log in to

his personal accounts with those entities during the same time

periods that the uploads took place.         From this we can soundly

conclude that the receipts of the Yahoo! CP Reports were introduced

as identifying evidence, designed to unveil Cameron as the person

responsible for uploading child pornography using the Yahoo! screen


11
   It should be noted that the receipts of the Yahoo! CP Reports
introduced into evidence did not contain any actual images of child
pornography, unlike the NCMEC CyberTipline Reports, which did.

                                     -40-
names featured in some of the counts of the indictment.              Hence,

these receipts were introduced to prove the truth of the matter

asserted and as such constitute hearsay.

            The next step in our inquiry calls upon us to determine

whether the receipts of the CP Reports are testimonial.           We assume

that the CP Reports, and by extension the receipts, would count as

business records for the purposes of Federal Rule of Evidence

803(6).     However, unlike the Yahoo! Account Management Tool, the

Login Tracker data and the Google Hello Connection Logs, there is

strong evidence that the CP Reports were prepared with the "primary

purpose of establishing or proving past events potentially relevant

to a later criminal prosecution."          Bullcoming, 131 S. Ct. at 2714

n.6 (internal quotation marks and citation omitted).           We also find

that the Reports are similar in purpose to the types of out-of-

court     statements   that   the   Supreme    Court   has   described   as

testimonial in recent Confrontation Clause cases.            See Davis, 547

U.S. at 828-29 (statements to law enforcement in non-emergency

situation); Meléndez-Díaz, 557 U.S. at 321 (documents created in

the ordinary course of business but also for litigation purpose).

Thus, although the CP Reports may have been created in the ordinary

course of Yahoo!'s business, they were also testimonial; the

receipts of the Reports, therefore, should not have been admitted

without giving Cameron the opportunity to cross-examine the Yahoo!

employees who prepared the CP Reports.


                                    -41-
            We start by objectively viewing the evidence to determine

the "primary purpose" of the Reports.         Firstly, we note that the CP

Reports   refer    to   a   "Suspect    Screen   Name,"   a   "Suspect   Email

Address," and a "Suspect IP Address."            A "suspect" is "one who is

suspected; esp. one suspected of a crime or of being infected."

Webster's Third New International Dictionary 2303 (2002).                There

was no testimony from Lee, nor any other evidence, that Yahoo!

treated its customers as "suspects" in the ordinary course of its

business.    Indeed, the word "suspect" does not appear anywhere in

the Account Management Tool or Login Tracker data.              Further, Lee

testified that in order for a CP Report to initially have been

created, someone in the Legal Department had to have determined

that an account contained what appeared to be child pornography

images.

            Secondly, once Yahoo! created a CP Report, it did not

merely keep it in its own files; rather, it sent the report on to

NCMEC (and kept a receipt).        Although NCMEC is not officially a

government entity, it receives a grant from the government, and one

of the uses to which NCMEC puts this grant money is to operate the

CyberTipline and forward reports of child pornography to law

enforcement.      See 42 U.S.C. § 5773(b)(1)(P).

            Given that Yahoo! created CP Reports referring to

"Suspect[s]" and sent them to an organization that is given a

government grant to forward any such reports to law enforcement, it


                                       -42-
is clear that under the "objective test" required by Williams, 132

S. Ct. at 2243, the primary purpose of the CP Reports was to

"establish[] or prov[e] past events potentially relevant to later

criminal    prosecution."      Bullcoming,    131   S.   Ct.   at   2714   n.6

(internal quotation marks and citation omitted).                The reports

clearly "established past events," in that each one reflected the

"event" of child pornography being placed into a Yahoo! user

account at some point in the past.           These "events" were clearly

"relevant    to   later     criminal   prosecution":     uploading     child

pornography and possessing it on the Internet are crimes, and

evidence as to the IP address, and screen name of the suspect, is

clearly relevant to prosecuting those crimes.            We also find that

the CP Reports were "made under circumstances which would lead an

objective witness reasonably to believe that the statement would be

available for use at a later trial."           Crawford, 541 U.S. at 52

(internal quotation marks and citation omitted).               Lee testified

that it was Yahoo!'s standard practice to send CP Reports to NCMEC

and keep receipts of those Reports; thus, whoever generated the CP

Reports in this case presumably knew that the Reports would most

likely spark an investigation, and that as a result of such

investigation, the government might request the CP Reports (in the

form of the receipts) from Yahoo! for use as evidence.

            Our conclusion is bolstered by a comparison of the CP

Reports at issue here with those statements the Supreme Court has


                                   -43-
found to be testimonial or non-testimonial in recent Confrontation

Clause cases.      For example, the CP Reports here are similar in many

ways to those statements that the Supreme Court found to be

testimonial in Davis. Davis concerned two consolidated cases. 547

U.S. at 817.       In the first case, the former girlfriend of Adrian

Davis ("Davis") called 911 to report that Davis was assaulting her,

and narrated Davis's attack to the operator as it occurred.             Id. at

817-18.   At Davis's trial, the girlfriend did not testify, but the

court admitted the recording of the 911 call, and Davis was

convicted of violation of a domestic no-contact order. Id. at 818-

19.   In the second case, the police responded to a domestic

disturbance at the home of Hershel Hammon ("Hammon").            Id. at 819.

The police separately questioned Hammon and his wife, the latter of

whom swore out an affidavit stating that Hammon had attacked her.

Id. at 820.       Hammon's wife did not testify at his trial, but the

court introduced her affidavit, and Hammon was found guilty.               Id.

at 820-21.

            In Davis's case, the Court found that the recording was

not testimonial because the primary purpose of Davis's girlfriend's

statements to the 911 operator were "to enable police assistance to

meet an ongoing emergency."         Id. at 828; see also id. at 827 ("A

911 call . . ., and at least the initial interrogation conducted in

connection with a 911 call, is ordinarily not designed primarily to

establish    or    prove   some   past   fact,   but   to   describe   current


                                     -44-
circumstances requiring police assistance.") (internal quotation

marks omitted).      However, in Hammon's case, the Court found that

his wife's affidavit was testimonial, because "[i]t [was] entirely

clear from the circumstances that the interrogation was part of an

investigation into possibly criminal past conduct."              Id. at 829.

            Here, the CP Reports are more similar in purpose to

Hammon's    wife's   affidavit   than     to   the   recording    of   Davis's

girlfriend's 911 call.     The CP Reports were clearly not intended

"to enable police assistance to meet an ongoing emergency" or to

"describe   current    circumstances    requiring     police     assistance."

Davis, 547 U.S. at 827-28.       While possession of child pornography

is a serious crime, and while discovering child pornography must

certainly have troubled Yahoo! and its employees, the presence of

child pornography in Cameron's accounts was certainly not an

"emergency" comparable to what Davis's girlfriend described to the

911 operator: an ongoing physical assault. Cf. Michigan v. Bryant,

131 S. Ct. 1143, 1166-67 (2011) (holding that statements by gunshot

victim to police identifying the shooter were not testimonial when

police had reason to believe that the shooter might still be armed

and in the area).     Rather, the CP Reports were clearly intended to

lead to "an investigation into possibly criminal past conduct."

See Davis, 547 U.S. at 829.      And although the Court in Davis found

it "unnecessary to consider whether and when statements made to

someone other than law enforcement personnel are 'testimonial,'"


                                   -45-
Davis, 547 U.S. at 823 n.2, we find that in the context of this

case, NCMEC effectively acted as an agent of law enforcement,

because it received a government grant to accept reports of child

pornography and forward them along to law enforcement.          Cf. id.

("If 911 operators are not themselves law enforcement officers,

they may at least be agents of law enforcement when they conduct

interrogations of 911 callers.      For the purposes of this opinion .

. . we consider their acts to be that of the police.").

           We   recognize   that    both   cases   in   Davis   involved

"interrogations," see id. at 822 n.1, and that the CP Reports here

did not result from any "interrogation" of Yahoo!.          However, as

noted above, Yahoo! was obligated under federal law to report any

child pornography it became aware of        to NCMEC.    See 42 U.S.C.

§ 13032(b)(1) (current version at 18 U.S.C. § 2258A(a)(1)).

Moreover, the Court in Davis noted that although the decision

referred to "interrogations," "[t]his [was] not to imply ... that

statements made in the absence of any interrogation are necessarily

nontestimonial."   Davis, 547 U.S. at 822 n.1.      "The Framers," the

Court noted, "were no more willing to exempt from cross-examination

volunteered testimony or answers to open-ended questions than they

were to exempt answers to detailed interrogation."        Id. (emphasis

added).   The CP Reports at issue here, we conclude, fall somewhere

in the range between "volunteered testimony" and responses to an

interrogation, and we are confident that the Framers would not have


                                   -46-
been willing to exempt testimonial statements in this range from

cross-examination.

            The situation here is also similar to that in Palmer v.

Hoffman, 318 U.S. 109 (1943), which the Court in Meléndez-Díaz

cited as an example of a case where the "regularly conducted

business activity [was] the production of evidence for use at

trial."    557 U.S. at 321 (citing Palmer, 318 U.S. 109).           Palmer

involved an accident at a railroad crossing in Massachusetts.            318

U.S. at 110.      The train's engineer, who died before trial, gave a

statement about the accident to a railroad official and to a

representative of the Massachusetts Public Utilities Commission.

Id. at 111.       The railroad sought to introduce the engineer's

statement under the Act of June 20, 1936, 49 Stat. 1561 (current

version, as amended, at 28 U.S.C. § 1732 (2012)), which allowed the

admission in federal court of any "memorandum or record of any act,

transaction, occurrence, or event" as long as such record "was made

in the regular course of any business."        Palmer, 318 U.S. at 111,

111 n. 1.      The Supreme Court held that the record was properly

excluded, noting that the statement was not "a record made for the

systematic conduct of the business as a business," but rather was

"calculated for use essentially in the court, not in the business."

Id.   at   113,   114;   see   also   Meléndez-Díaz,   557   U.S.   at   321

(explaining the holding of Palmer).          Here, the fact that the CP

Reports were made pursuant to a standard Yahoo! business practice


                                      -47-
does not mean they were made to advance Yahoo!'s core business

purpose, which is, as Lee testified, to offer Internet-based

services such as e-mail, search, and instant messaging.              Just as

the "primary utility" of the report in Palmer was "in litigating,

not in railroading," 318 U.S. at 114, the primary utility of the CP

Reports here is in reporting crimes to law enforcement, not in

providing Internet-based services to Yahoo!'s customers.

           Finally,   we     believe        the    CP   Reports    here    are

distinguishable from the out-of-court statements that a plurality

of the Justices found to be non-testimonial in Williams, the

Supreme   Court's   most    recent    Confrontation     Clause    case.    In

Williams, vaginal swabs from a sexual-assault kit were sent to

Cellmark Diagnostics Laboratory ("Cellmark"), which produced a DNA

profile from the semen found in the swabs.              132 S. Ct. at 2229

(Alito,   J.,   plurality    opinion).        At    Williams's    trial,   the

prosecution called as a witness Sandra Lambatos ("Lambatos"), an

expert in biology and DNA analysis.          Id.    Lambatos testified that

the DNA profile produced by Cellmark matched the DNA profile of

Williams, which was already in a state database as a result of a

prior unrelated arrest.     Id.   Although the Cellmark report was not

admitted into evidence at all, the Williams plurality held that

"[e]ven if the Cellmark report had been introduced for its truth,

we would nevertheless conclude that there was no Confrontation

Clause violation."    Id. at 2242.


                                     -48-
           Based on the circumstances of the case, the plurality

concluded that "the primary purpose" of the Cellmark report,

"viewed   objectively,    was     not    to    accuse    [Williams]    or   create

evidence for use at trial."       Id. at 2243.        The plurality noted that

when the state sent the kit to Cellmark, the state's "primary

purpose was to catch a dangerous rapist who was still at large, not

to obtain evidence for use against [Williams], who was neither in

custody nor under suspicion at the time."               Id.    The plurality also

noted that "no one at Cellmark could have possibly known that the

profile it produced would turn out to inculpate [Williams] -- or

for that matter, anyone else whose DNA profile was in a law

enforcement database."       Id. at 2243-44.             The plurality further

noted that in DNA labs, "the technicians who prepare a DNA profile

generally have no way of knowing whether it will turn out to be

incriminating or exonerating -- or both."               Id. at 2244.

           This    last   point    is    critical       in    distinguishing     the

Cellmark reports in Williams from the Yahoo! CP Reports here.

Nobody at Yahoo! who was involved in creating the CP Reports could

possibly have believed that the CP Reports could be other than

"incriminating."     Recall that (1) Yahoo! created these Reports

after its own employees had already concluded that a crime had been

committed,   and    (2)   Yahoo!        then   sent     these    Reports    to   an

organization that forwards such reports to law enforcement.

Yahoo!'s employees may not have known whom a given CP Report might


                                        -49-
incriminate, but they almost certainly were aware that a Report

would incriminate somebody.

              The government contends that we should focus not on the

purpose for which the CP Reports were created, but rather on the

purpose for which the records underlying the CP Reports -- such as

the record of the user's IP address, and the associations between

images and accounts -- were created.                    Because these underlying

records were created for a Yahoo! core business purpose, the

government contends that under the "primary purpose" test, the CP

Reports are not testimonial.             The government urges us to treat the

Yahoo! CP Reports like the immigration documents we held to be non-

testimonial in Lang, 672 F.3d at 22-23, or like the types of

business   records       that    other     Circuits     have    found       to   be   non-

testimonial.      See, e.g., United States v. Yeley-Davis, 632 F.3d

673, 677-81 (10th Cir. 2011) (holding that neither cell phone

records nor      their    authenticating          documents    were testimonial);

United States v. Ali, 616 F.3d 745, 751-52 (8th Cir. 2010) (holding

that bank records regarding taxpayer refund anticipation checks

were not testimonial).

              However, the government's argument ignores a critical

point:   as    explained        earlier,    the    CP   Reports       are    themselves

"statements,"      and     thus      their        purpose      must     be       analyzed

independently.     It is not enough to analyze the purpose behind the

creation of the business records on which the CP Reports rely.                         If


                                         -50-
the CP Reports simply consisted of the raw underlying records, or

perhaps underlying records arranged and formatted in a readable way

for    presentation      purposes,    the   Reports    might   well   have   been

admissible.    See Lang, 627 F.3d at 22-23; Yeley-Davis, 632 F.3d at

677.     Indeed,    we     have    upheld   the    admission   of   the   Account

Management Tool and Login Tracker printouts because those exhibits

simply take pre-existing records (records such as the IP addresses

from which an account was created and accessed) and put them on

paper in a readable format.           But the CP Reports are a different

animal, for they do not merely present pre-existing data; instead,

they convey an analysis that was performed using pre-existing data.

            From our earlier discussion, recall that the CP Reports

and Lee's testimony clearly indicated that, to create each Report,

someone at Yahoo! analyzed Yahoo!'s data, drew conclusions from

that data, and then made an entirely new statement reflecting those

conclusions.       Each report also refers to a "Suspect" who is

identified by his "Screen Name," "Email Address," "IP Address," and

"URL."     This    means    that    someone   at    Yahoo!   analyzed     Yahoo!'s

business records and concluded that (1) a crime had likely been

committed and (2) a particular user likely committed that crime.12

Thus, every Yahoo! CP Report was a new statement that conveyed an


12
   We do not treat the pictures themselves as business records of
Yahoo!. However, the association between a picture and an account
is clearly a business record of Yahoo!; without keeping track of
these associations, Yahoo! could not figure out which photos on its
servers belonged to which users.

                                       -51-
analysis that had not existed previously.           The new statement was,

in effect, "someone has committed a crime, here is the evidence

that a crime was committed, and here is how to identify the

perpetrator."     The primary purpose of this new statement was law

enforcement-related, even if the primary purpose of the data used

to   support    the   statement   was    not.   Our    conclusion      here    is

strengthened by the fact that in preparing the CP Reports, the

Yahoo! employees removed the images they thought did not depict

child pornography, as said images would presumably not be relevant

to the prosecution of a child pornography crime.

           The fact that Yahoo! attached to each CP Report the

records that justified its analysis -- the Account Management Tool,

Login Tracker, and Image Upload Data -- does not mean that the CP

Report itself was not a new statement.          By creating the CP Report,

the author of the report went beyond simply furnishing pre-existing

records and crossed the line into testifying regarding the meaning

of those records; in this circumstance, Cameron had the right to

confront the author.     Cf.   Meléndez-Díaz, 557 U.S. at 322 (noting

that traditionally,      a   clerk was    allowed     to   "'certify    to    the

correctness of an [official] record kept in his office,' but had

'no authority to furnish, as evidence for the trial of a lawsuit,

his interpretation of what the record contains or shows, or to

certify to its substance or effect'") (quoting State v. Wilson, 75

So. 95, 97 (La. 1917)).      Indeed, the distinction between business


                                   -52-
records and statements about those records was recognized by the

Eighth Circuit in Ali, a case on which the government relies.                       In

Ali, the prosecution introduced "exhibit 95," which consisted of

two    parts:    (1)     records    from    a    bank,    HSBC,    regarding    three

taxpayers' refund anticipation checks; and (2) a letter from a

manager at HSBC that explained the meaning of the records.                         616

F.3d at 751.      The HSBC manager wrote that the letter was a "written

statement to verify that [the three taxpayers] filed 2002 income

tax    returns    with    Cedar     Tax    Services      and   applied   for   Refund

Anticipation Checks."         Id.    The Eighth Circuit held that while the

bank    records    were    nontestimonial,        "[t]he       letter   was   arguably

equivalent to live, in-court testimony and thus not admissible as

a business record."         Id. at 752.13


13
    At oral argument, the government analogized Yahoo! to a bank
that records statements of financial transactions. The government
contended that if the bank detected suspicious activity in certain
statements, and if the bank collected those statements and reported
those transactions to the authorities, the bank's financial
transaction statements would not become testimonial simply because
the bank aggregated them in order to make its report. In support
of this proposition, the Government relied on United States v.
Naranjo, 634 F.3d 1198 (11th Cir. 2011).

     However, the government's analogy is inapplicable to the
analysis of the CP Reports. The bank records in the government's
example are the equivalent to the Account Management Tool, Login
Tracker, or Image Upload Data in this case. These documents, like
the bank records in the government's example, did not become
testimonial simply because they turned out to be relevant to a
prosecution. The CP Reports, however, have no equivalent in the
government's example.    The Reports are documents that contain
analyses based on certain other records that were performed only
after criminal activity was detected.


                                          -53-
           It may be the case that the new statement represented in

each CP Report -- "someone has committed a crime, here is the

evidence that a crime was committed, and here is how to identify

the   perpetrator"   --   was   an   obvious   conclusion   based   on   the

underlying data.     Presumably any Yahoo! employee who saw child

pornography images in a user's account would conclude that the user

is at least a "suspect" in a child pornography crime, and that the

"suspect's" IP address is the one associated with that account.

But one small analytical step for man can sometimes be one giant

leap for Confrontation Clause purposes.            To hold that the CP

Reports are admissible without confrontation as business records

simply because they state obvious conclusions based on data in

other business records would be to "return to [the Supreme Court's]

over-ruled decision in [Ohio v. Roberts], which held that evidence

with 'particularized guarantees of trustworthiness' was admissible


     In addition, Naranjo is of limited relevance to this case
because it is clearly distinguishable on its facts. In Naranjo,
the Eleventh Circuit held that bank records and checks could be
admitted into evidence as non-testimonial business records. 634
F.3d at 1213-14. However, the defendant's Confrontation Clause
argument on appeal was aimed not at these records, but on summary
charts based on the records that were prepared by a government
agent. The Eleventh Circuit held that the charts were admissible
because they simply summarized underlying data that was non-
testimonial.   Id. at 1213.   However, the defendant was able to
cross-examine the agent who prepared the summary charts, and the
district court had instructed the jury to refer to the charts "only
as an aid . . . and not for the truth." Id. (internal quotation
marks omitted). Here, Cameron had no opportunity to cross-examine
the author of the CP Reports. Moreover, we deem the CP Reports to
be more than a mere "summary" of other data; rather, they are an
analysis of other data.

                                     -54-
notwithstanding the Confrontation Clause." Meléndez-Díaz, 557 U.S.

at 317 (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)).                   See also

Crawford, 541 U.S. at 62 ("Dispensing with confrontation because

testimony is obviously reliable is akin to dispensing with jury

trial because a defendant is obviously guilty.                   This is not what

the Sixth Amendment prescribes.").

            Because the CP Reports were testimonial, the receipts

stored by Yahoo! were necessarily testimonial as well.                    Thus, they

should     not   have    been     admitted     without     giving       Cameron    the

opportunity to cross-examine the Yahoo! employees who prepared the

CP Reports.         We therefore conclude that the admission of the

receipts    in    this    case    violated     Cameron's        rights    under     the

Confrontation Clause.

            4. CyberTipline Reports

            Cameron      also    assails      the    admission     of     the     NCMEC

CyberTipline Reports, arguing further violations of his rights

under the Confrontation Clause.             The government's response is that

the CyberTipline Reports are not actually "statements" of NCMEC,

because     NCMEC    merely      forwards     Yahoo!'s     CP    Reports    to     the

appropriate law enforcement agency.                 We conclude, however, that

this argument is unavailing, as we have already determined that the

Yahoo! CP Reports from which the CyberTipline Reports are derived

are testimonial.        By the government's logic, NCMEC would simply be

forwarding       testimonial      statements        made   by     Yahoo!    to     law


                                       -55-
enforcement.   Therefore, the Confrontation Clause problems we find

with the admission of CP Reports taint the admission of the

CyberTipline Reports.

           In any event, we are not convinced that the record

supports the government's contention that the CyberTipline Reports

"contain exactly the same information present in" the Yahoo! CP

Reports.     In fact, we believe the record supports an opposite

reading, which is that NCMEC does not always send along exactly

what it receives from Yahoo! to law enforcement.               Our analysis

below   supports    the   conclusion     that   these    reports   were   new

statements   made   by    NCMEC   and   constituted     testimonial   hearsay

statements which were admitted into evidence in violation of

Cameron's Confrontation Clause rights.

           First, the CyberTipline Reports were introduced into

evidence to prove the truth of the matters asserted in them.              Our

previous discussion outlining the district court's reasoning in

admitting the Yahoo! CP Reports demonstrates that the CyberTipline

Reports were admitted as part of a batch of evidence aimed at

proving that Cameron had uploaded child pornography images onto

several Yahoo! accounts. In fact, without the CyberTipline Reports

the prosecution would not have been able to prove Cameron's guilt

as to Counts One, Two, Three, Four, Five, Eleven and Fourteen of

the Indictment, which exclusively charge Cameron with uploading

digital images of child pornography onto specific Yahoo! accounts


                                    -56-
on specific dates. The only piece of evidence the government could

have relied on to establish the specific dates on which Cameron had

uploaded the offending images was the CyberTipline Reports, which

reflected the date and time on which the most recent image of child

pornography had been uploaded, as well as the IP address from which

that upload had originated.14

          The receipts of the Yahoo! CP Reports alone were not

enough to sustain Cameron's convictions under the above-referenced

counts because they did not contain the specific date of each

upload, nor did they contain the actual images that were uploaded.

As mentioned earlier, a list of the IP Addresses from which each of

the images were uploaded, along with the date and time of each


14
   For example, Count Eleven charged Cameron with uploading child
pornography images to the "lilhottee00000" account on July 26,
2007. The evidence from Time Warner and other sources showed that
Cameron's residence had been assigned the IP address 76.179.26.185
on that date. To show that child pornography was uploaded to the
"lilhottee00000" account on that date, the government pointed to a
CyberTipline Report for "lilhottee00000." This Report indicated
that the "most recent file or image upload available" in the data
sent from Yahoo! was uploaded from 76.179.26.185, and further
indicated that the "upload date" was July 26, 2007 at 9:37 AM
Pacific Daylight Time.    We have found no other exhibit in the
record that indicates that child pornography was uploaded to the
"lilhottee00000" account on July 26, 2007. Nor is there any other
exhibit that shows that child pornography was uploaded to this
account from IP address 76.179.26.185. The CP Report that Yahoo!
sent to NCMEC for "lilhottee00000" does not show the times at which
images were uploaded or the IP addresses from which they were
uploaded (the report shows a "Suspect IP Address" of 76.179.26.185,
which is the IP address Yahoo! "associated" with the account, but
Lee did not explain how the address was "associated"). The Image
Upload Data attached to the CP Report had this information,
according to Lee, but the government does not appear to have
introduced this data into evidence.

                                -57-
upload, was contained in the Image Upload Data that Yahoo! sent to

NCMEC as part of each CP Report.            However, from our review, it does

not appear that this data was included with the CP Report receipts

the prosecution introduced at trial, or anywhere else on the record

for    that   matter.      Therefore,       the   CyberTipline    Reports      were

introduced -- and admitted -- into evidence to prove the truth of

the assertions contained therein, most importantly: that child

pornography images were uploaded onto a particular Yahoo! account,

and that the most recent one of those images was uploaded from a

specific IP Address on a specific date and time.

              The reasoning above defeats the government's argument

that the CyberTipline Reports are not really "statements" of NCMEC

because all they do is simply convey information sent to NCMEC by

companies like Yahoo! to law enforcement. The government relies on

testimony from Shehan, the NCMEC witness, to the effect that NCMEC

does    not    add   anything    to   the    reports     it   receives   via    the

CyberTipline, aside from a "report ID" number and an "entry date"

for the report.        However, this does not explain the fact that the

CyberTipline Reports reflect the date and time of the most recent

child pornography image upload, while the receipts of the Yahoo! CP

Reports   do    not.      As    mentioned     earlier,    the   only   reasonable

explanation we can surmise is that the NCMEC employee who created

these reports analyzed the information contained in the Image

Upload Data sent by Yahoo!, picked the IP Address from which the


                                       -58-
most recent image was uploaded, and included this information,

along with the date and time of that upload, in the CyberTipline

Report. We note that the Yahoo! CP Reports did not specify whether

the “Suspect IP Address” was the IP Address from which the most

recent   image   of    child   pornography       had   been    uploaded,   a

representation which was in fact made in the CyberTipline Reports.

Therefore, in order to make this representation, the NCMEC employee

who prepared the CyberTipline Reports had to have analyzed the

Image Upload Data sent by Yahoo!.

          In doing so, the NCMEC employee undertook a similar

exercise to the one performed by the Yahoo! employee who created

the CP Reports; they both analyzed the underlying information in

the Image Upload Data and then used that information to create a

separate, independent statement.      The new statement made by NCMEC

can be characterized along these lines: "based on the Yahoo! data,

we have determined that the IP Address used by the suspect to

upload the most recent image of child pornography is X, and the

date and time of this upload is Y and Z."

          Having determined that the CyberTipline Reports were

indeed new statements by NCMEC, the question now is whether they

were testimonial.     The answer must be "yes," for it is clear that

the "primary purpose" of a CyberTipline Report is to "establish[]

or prov[e] past events potentially relevant to later criminal

prosecution."    Bullcoming,    131   S.   Ct.    at   2714   n.6 (internal


                                  -59-
quotation marks and citation omitted).       Indeed, Shehan conceded as

much during cross-examination:

          Q: "Mr. Shehan, the sole purpose of the
          reports that are embodied by Exhibits . . .
          10A through 10M [the CyberTipline Reports] is
          to prove facts at trial, correct?"

          A: "It's to be part of the record, yes."

In addition, the primary purpose is also reflected on the face of

the reports themselves, which state: "Law enforcement officials

please be advised: this Report is being provided solely for the

purpose of a law enforcement investigation into possible criminal

behavior." (emphasis on original removed).

          Even without the above, we would have no trouble finding

that the CyberTipline Reports were testimonial.              As such, they

could not have been admitted without giving Cameron the opportunity

to cross-examine their authors.       Shehan admitted that he was "not

the original analyst who processed" the Yahoo! CP Reports in this

case.   Thus, the admission of the CyberTipline Reports in these

circumstances violated the Confrontation Clause.

E. Harmless Error Analysis

          That   certain   evidence    was   admitted   in   violation   of

Cameron's Confrontation Clause rights does not necessarily mean

that we must reverse Cameron's convictions on any counts. Instead,

we must determine whether or not the error was harmless beyond a

reasonable doubt; if the error was harmless, we will not reverse.

See United States v. Meises, 645 F.3d 5, 24 n.26 (1st Cir. 2011)

                                 -60-
("Constitutional errors, such as a Confrontation Clause violation,

require reversal unless shown to be harmless beyond a reasonable

doubt." (emphasis added) (citing United States v. Cabrera-Rivera,

583 F.3d 26, 36 (1st Cir. 2009))). In Cabrera-Rivera, we explained

that

            [i]n evaluating harmlessness, we consider a
            number of factors, including whether the
            challenged statements were central to the
            prosecution's case; whether the statements
            were merely cumulative of other (properly
            admitted)    evidence;    the    strength  of
            corroborating or contradicting evidence; the
            extent    to  which    cross-examination  was
            permitted; and the overall strength of the
            case.

583 F.3d at 36 (citing Earle, 488 F.3d at 546).             The burden of

proving harmlessness is on the government.          Earle, 488 F.3d at 545

(referring to "[the government's] burden of showing that any such

error was harmless beyond a reasonable doubt").

            It is clear that for many of the counts of conviction,

the CP Report receipts and CyberTipline Reports were not even

relevant,   much   less    "central,"   to    the   prosecution's    case.

Cameron's guilt on the five counts related to Google Hello --

counts Six, Seven, Nine, Twelve, and Thirteen -- was provable

beyond a reasonable doubt using the Google Hello Connection Logs,

which were properly admitted. Likewise, Cameron's Yahoo! email and

the child    pornography    found on    his   computer   showed     beyond a

reasonable doubt that he received child pornography via email as

charged in Count Ten.      Finally, Cameron's guilt on Count Fifteen,

                                  -61-
the child pornography possession count, was proven using the child

pornography images found on his computer.                Cameron argues that

"spillover" prejudice from the improperly admitted records taints

these convictions    as     well,    but   this    argument   is   meritless.

Cameron's trial was a bench trial, and we are confident that the

district court was capable of recognizing which evidence was

relevant for each count of conviction. Cf. United States v. Zayas,

876 F.2d 1057, 1059 (1st Cir. 1989) (in the context of bench trial,

holding that "spillover effect . . . was minimal").

          However, for those counts that were based solely on

Cameron's alleged uploading of child pornography images to Yahoo!

accounts -- counts One, Three, Four, Five, Eleven, and Fourteen --

we conclude that the admission of the Yahoo! CP Reports and the

CyberTipline Reports was not harmless.             As we have explained, in

those counts the government charged Cameron with very specific

conduct: uploading child pornography to specified Yahoo! Photo

accounts on specified dates.         The government was able to establish

which IP addresses Cameron had on the dates in question through

evidence from Time Warner and other companies.              But to prove that

Cameron actually uploaded child pornography to the accounts in

question on   the   dates    in     question,     the   government   needed   to

introduce evidence showing that (1) child pornography had been

uploaded to those accounts on the specific dates in question from

the same IP addresses that Cameron had on those dates; and (2) no


                                      -62-
one else in Cameron's household but Cameron himself could have been

the one who uploaded the images.         And again, as far as we can tell

from    the   record,   the    only   evidence   that   was   introduced   to

demonstrate the upload dates and the upload IP addresses was the

CyberTipline Reports.         Thus, the improperly admitted reports were

"central to the prosecution's case" and were not "cumulative of

other (properly admitted) evidence."         Cabrera-Rivera, 583 F.3d at

36.15

              Our result might be different if the government could

point us to other admitted evidence specifically showing (1) that

child pornography had been uploaded to the accounts identified in

the indictment (2) on the dates specified in the indictment (3)

from the IP addresses that Cameron had on those dates.                     For

example, the government might have introduced the Image Upload Data

from Yahoo!; the government presumably could have acquired this

data, as Lee testified that Yahoo! stored it with the receipts.

However, it is not clear from the trial transcript or the parties'

briefs whether Yahoo! in fact produced this to the government; and

in any case, it appears the government did not attempt to introduce

it at trial.        Since it is the government's burden to prove

harmlessness, and since we find no indication that any alternate




15
   Cameron does not challenge the government's showing that neither
his wife nor his children could have been the ones who uploaded the
images.

                                      -63-
evidence     was   actually      admitted,    we   must    reverse       Cameron's

convictions for Counts One, Three, Four, Five, and Eleven.16

F. Sentencing Challenge

            Because we must reverse Cameron's conviction with respect

to six counts, we need not reach his sentencing challenge at this

time.   Upon remand, the district court may consider in the first

instance whether its original calculation of the number of photos

attributable to Cameron is still valid in light of the reversal of

the convictions on Counts One, Three, Four, Five, Eleven, and

Fourteen.

                                 III. Conclusion

            Before concluding, we pause to reiterate, for clarity's

sake, what we have (and perhaps more importantly, what we have not)

held today.    Our holding today does not mean that non-testimonial

business records somehow become testimonial simply because the

government    seeks   to   use    them   as   evidence    against    a    criminal

defendant.     However, if business records are testimonial, then a

defendant must be given an opportunity to confront the authors of

those records.     What the government did in this case was seek to



16
   During oral argument, counsel for the government seemed to admit
that the admission of the Yahoo! CP Reports was harmful to several
counts of the indictment, but stated that the admission of the
CyberTipline Reports was not. We take the government at its word
that the CP Reports were harmful, but disagree with its
characterization of the CyberTipline Reports, as it is evident that
these were central in proving that Cameron had uploaded child
pornography images on the specific dates set out in the indictment.

                                      -64-
introduce,     absent    confrontation   of    the   authors,   out-of-court

statements that: (1) did not exist before criminal activity was

discovered; (2) stated conclusions (though perhaps obvious ones)

about the meaning of underlying data; (3) were created for the

express purpose of reporting criminal activity and identifying the

perpetrator     of    that   activity;   and   (4)   were   reported   to   a

government-funded entity that serves as a conduit for passing

information to law enforcement.            This, we hold, the government

cannot do.17

          We reverse Cameron's convictions on Counts One, Three,

Four, Five, Eleven, and Fourteen, and vacate his sentence as to

those counts.        We affirm Cameron's convictions on the remaining

Counts.   We remand to the trial court for further proceedings

consistent with this opinion, including a new trial on Counts One,

Three, Four, Five, Eleven, and Fourteen, if the government wishes

to so proceed.

          AFFIRMED in part, REVERSED in part, and REMANDED.



                        "Dissenting opinion follows"


17
   As the Supreme Court discussed recently in Williams, there are
special rules that apply to testimony by expert witnesses about the
conclusions they draw from underlying data.      See 132 S. Ct. at
2233-35, 2239-41. Because there was no expert testimony at issue
in this case related to image upload times or IP addresses (the
only expert testimony, from Dr. Ricci, concerned the age of persons
depicted in the images), our analysis is not disturbed by the
Supreme Court's conclusions in Williams about expert testimony.

                                    -65-
             HOWARD, Circuit Judge (dissenting in part).               I dissent

only with respect to the majority's conclusion that the district

court's   decision    to     admit   the   Yahoo!   reports    and   the     NCMEC

CyberTipline reports ran afoul of the defendant's Sixth Amendment

Confrontation Clause protection.           From my vantage, the majority is

taking an unjustified step beyond what current Supreme Court

precedent dictates in the developing arena of what documents

bearing the hallmarks of business records and offered as evidence

in a criminal trial constitute or contain testimonial statements

for purposes of the Confrontation Clause.           Because I do not see the

documents targeted by the majority as containing a testimonial

statement in the manner advanced by the appellant, I would not

disturb the district court's decision to admit the documents.

             The Sixth Amendment's Confrontation Clause confers upon

an accused in a criminal prosecution the right to be confronted

with   the   witnesses     against   him.    U.S.   Const.    amend.    VI;   see

Bullcoming v. New Mexico, 564 U.S. __, 131 S. Ct. 2705, 2713

(2011); United States v. Phoeun Lang, 672 F.3d 17, 21 (1st Cir.

2012).    This constitutional mandate affords a criminal defendant

procedural protection by guaranteeing that the reliability of

certain evidence, tagged "testimonial hearsay," can be tested by

cross-examining      the   one   "bear[ing]     testimony"     against     him.

Crawford v. Washington, 541 U.S. 36, 51, 53 (2004); accord Davis v.

Washington,    547    U.S.    813,   823–24    (2006).        Of   course,    the


                                      -66-
reliability of all evidence offered against a criminal defendant is

always at the forefront of a trial court's gatekeeping role, but

the Sixth Amendment guarantees the opportunity for a particular

manner of testing reliability, cross-examination, for a particular

type of evidence, testimonial out-of-court statements offered for

the truth of the matter asserted by the declarant.        See Williams v.

Illinois, 567 U.S. __, 132 S. Ct. 2221, 2232-35 (2012) (plurality);

Crawford, 541 U.S. at 59-60 n.9 (citing Tennessee v. Street, 471

U.S. 409, 414 (1985)).    Evidence offered by the government that is

an out-of-court testimonial witness statement cannot be admitted at

a criminal trial unless the declarant of that testimonial statement

is   unavailable   and   the   accused   has   had   an   opportunity   to

cross-examine the declarant on a prior occasion. See Crawford, 541

U.S. at 59 & 60 n.9; see Lang, 672 F.3d at 22.

           The Supreme Court has recited various formulations of the

"core class of 'testimonial' statements" as including

           (1) "ex parte in-court testimony or its
           functional equivalent—that is, material such
           as affidavits, custodial examinations, prior
           testimony that the defendant was unable to
           cross-examine, or similar pretrial statements
           that declarants would reasonably expect to be
           used prosecutorially," (2) "extrajudicial
           statements contained in formalized testimonial
           materials, such as affidavits, depositions,
           prior testimony, or confessions," and (3)
           "statements that were made under circumstances
           which   would   lead  an   objective   witness
           reasonably to believe that the statement would
           be available for use at a later trial."



                                  -67-
Lang,   672    F.3d   at   22   (quoting   Crawford,   541   U.S.   at   51-52)

(ellipsis omitted).        While the Court initially did not endorse any

particular formulation as circumscribing the bounds of testimonial

hearsay, see Davis, 547 U.S. at 822, it seems to have since

ratified the above list, at least as being illustrative.                   See

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309-10 (2009); Lang,

672 F.3d at 22.       And in recent years, the Court has considered the

scope of "testimonial" statements, particularly in the police

interrogation setting, see Davis, 547 U.S. 813, and with respect to

scientific reports, see Bullcoming, 131 S. Ct. 2705; Melendez-Diaz,

557 U.S. 305; see also Williams, 132 S. Ct. 2221.

              In this case, Cameron argued vigorously to the trial

court that the various digital images and related materials that

had been derived from Yahoo!, NCMEC and Google sources must be

excluded from evidence unless the government produced at trial the

percipient witness who found and seized the electronic contraband

and transmitted it to the government.            In one pleading defense

counsel posited, "[t]he figurative elephant in the room revolves

around whether Mr. Cameron must be given an opportunity to confront

each and every witness who supplies evidence that the government

will use to prove that Mr. Cameron committed the alleged offenses."

In his motion for a new trial, the defendant insisted that the

"testimonial qualities" of the various evidence -- particularly the

Yahoo! evidence introduced by witness Lee -- was "obvious."


                                      -68-
             Failing to persuade the trial court, the defendant now

brings his constitutional plaint before us. As the majority notes,

Cameron does not parse out the testimonial nature of each of the

various pieces of digital and documentary evidence originating from

Yahoo!, NCMEC, and Google.            Instead, he takes the global position

that "any report which discloses the location where evidence was

seized must be testimonial."                With a sweeping stroke, Cameron

argues that because such reports attest to the location where the

digital images themselves were found, they are "clearly testimonial

statements" that are identical to a statement that "I found the

drugs   in   the   defendant's        car"    or     "I   found    the   gun   in   the

defendant's garage."            To test the veracity of these purported

statements about location that are embedded within the reports, the

appellant    claims      that    he   was     entitled     to     cross-examine     the

person(s) who found the records about how, when and where the CP

images were located.

             I agree with the majority that the admission of evidence

pertaining to the Yahoo! Account Management Tool, the Yahoo! Login

Tracker data,      and    the    Google      Hello    Connection     logs   does not

implicate the Confrontation Clause.                  I do not, however, view the

Yahoo! reports (presented in the form of receipts to the judge

sitting as fact finder), and by extension the NCMEC CyberTipline




                                        -69-
reports, as amounting to testimonial statements in the manner

argued by the defendant and decided by the majority.18

            To   begin,      I   emphasize     that    the   Sixth     Amendment   is

concerned with testimonial statements that are being offered for

the truth of the matter asserted.               See Williams, 132 S. Ct. at

2232-35; Crawford, 541 U.S. at 59-60 n.9.               And so, it is important

to    look to    the    government's    purpose in          admitting    the   Yahoo!

reports.

            While the defendant likens the Yahoo! reports to witness

testimony of the location of contraband, the government did not

offer any Yahoo! report for the truth of any averment in it that

the stored images found in the particular Yahoo! photo album

actually were contraband or even "suspected" contraband.                       Indeed,

the    government      was   clear   that    even     the    illicit    descriptive

"original names" of some of the image files (not assigned by a

Yahoo! employee) listed in the report's table should not be relied

on to assess the illegal nature of the actual digital images.

Rather, the government provided the testimony of an expert in child

abuse who analyzed each image in relation to the "Tanner stages" to

establish   that       the   sexually   graphic       images   in    fact   depicted

children within a certain age span.


18
   For the same reasons as the majority does, I refer solely to the
Yahoo! reports when conducting the constitutional analysis here.
I also note that numerous receipts of the Yahoo! reports were
admitted into evidence and at times, I reference a report in the
singular simply for ease in exposition.

                                        -70-
            Moreover, the appellant provides no record support to

show that the district court, as the trier of fact in this case,

somehow relied on the Yahoo! reports to determine whether or not

the images themselves constituted child pornography.             The trial

court was quite clear that the documentary evidence was admitted

for the purpose of providing a link between the images alleged to

be child pornography that were found on the Yahoo! server, and the

particular identified user name (also sometimes referred to in the

evidence as "screen name" or "login name") and IP address that

Yahoo! associated with that user name.               The trial court also

referred to the various "ISP documents" admitted into evidence in

relation to the image archives as "chain of custody evidence."

            Accordingly, the constitutional analysis is properly

confined to whether an admitted Yahoo! report contains testimonial

statements that the images listed in the report and provided as

digital evidence were located in the photo album account associated

with   a   particular   user   name    (such   as   "harddude0000")   and   a

particular IP address Yahoo! associated with that user name (such

as "76.179.26.185").     Certainly, the reports reflect this location

connection.    But a review of both Lee's testimony explaining the

process of data storage and retrieval followed by Yahoo!, as well

as the reports themselves, leads to the conclusion that the Yahoo!

reports do not contain any testimonial statements.




                                      -71-
           For his part, the defendant generally speaks of all of

the records that accompany the digital images as "affidavits that

attest to the location" of where the images were found, but he does

not analyze each document type.        Instead, he likens the sum of the

reports in this case -- including the Yahoo! reports -- to the

evidence at issue in Melendez-Diaz and Bullcoming, arguing that the

records "were admitted as computer forensic evidence obtained by

unknown persons using unknown methods and presented by substitute

witnesses"   in    violation    of     his   Sixth    Amendment     right    to

confrontation.     The comparison, however, is inapt.

           The heart of the testimonial hearsay in Melendez-Diaz was

a certification statement akin to an affidavit made by a state

forensic   laboratory   analyst      attesting   to    the   fact   that    the

forensically analyzed substance was cocaine; the substance had been

seized by law enforcement and delivered to the state laboratory for

analysis of its contents.      557 U.S. at 308.       The certificates were

offered as substantive evidence to prove the truth of the assertion

that the nature of the substance was actually cocaine, an assertion

generated by a scientific forensic analysis specifically engaged in

to produce evidence for use at a criminal proceeding.             Id. at 310-

11.

           The    circumstances   of    Bullcoming     are   similar.       The

testimonial statement in that case consisted of a certification by

an analyst akin to a "formalized signed document" attesting to the


                                     -72-
fact that a blood sample contained an alcohol content of "0.21

grams per hundred milliliters"; the blood had been drawn from the

defendant at a local hospital in connection with a driving under

the influence charge and delivered to the state laboratory by law

enforcement for forensic analysis of its contents.    131 S. Ct. at

2710, 2716-17. The certificate was offered as substantive evidence

to prove the truth of the assertion as to the level of alcohol

content in the blood sample, an assertion generated by a scientific

forensic analysis specifically engaged in to produce substantive

evidence for use at a criminal trial.   Id. at 2711, 2713, 2716-17.

          Here, the defendant is left to argue that the purported

statement in a Yahoo! report offered for its truth is that the

digital images were found in the Yahoo! photo album tied to the

identified user name and the associated IP address.   For its part,

the majority seizes on the IP addresses identified in the Yahoo!

reports because in one instance a different IP address was recorded

in the Account Management Tool for the identified user name.   The

majority surmises that both the government and the district court

took the IP address identified in a Yahoo! report to be the one

from which the most recent image of child pornography had been

uploaded into a Yahoo! photo album.       From this the majority

concludes that the government used the Yahoo! reports to tie the

defendant to the specific IP addresses from which child pornography

images were uploaded.    Even so, I part ways with the majority


                               -73-
because   the   link   in   any   given   Yahoo!   report   between   the

incriminating images and the accompanying user name and IP address

is not a testimonial statement.19

          To the extent the connection between the identified user

name, the associated IP address, and the digital images archived

from that user's photo album can be deemed a declarant statement,

that location connection existed well before Yahoo! even received

the customer complaint about the content of the images associated

with the screen name "lilhottyohh".        Indeed, the thrust of Lee's

testimony was that the storage of the digital images and the

associated account data on the Yahoo! servers was an essential part

of the Yahoo! photo album service.        The record indicates that the

computer systems and retrieval tools for locating images in any

given user's photo album (along with stored account information

gathered with the archive such as the associated IP address) were

the same as those Yahoo! uses to locate all information stored

about a user on the servers for its ordinary business functions.

It is helpful to amplify the record on this point.

          As the majority notes, Yahoo! is an Internet Service

Provider portal which, as Lee explained, is in the business of


19
   The majority begins its discussion on the testimonial nature of
the reports by examining their facial features, focusing on the
term "suspect" that is contained in some "fields" that list certain
types of information, such as "Suspect IP Address." I think it
more likely that "suspect" is used as an adjective in the reports
to delineate the suspicious address and user names, not, as the
majority says, as a noun targeting a specific person.

                                  -74-
providing several internet services to its users, such as internet

searching, email, "messenger," and (as of the time of the criminal

conduct   at   issue)   a   photo   album   service.      Various    types   of

information or data relating to Yahoo! users and the services that

each user employed are stored on servers.          Such stored information

includes emails, email "address books," "friends" lists, user

registration information, and login history.              Data pertaining to

the photo album service -- the stored digital images -- was handled

no differently. This service allowed a Yahoo! user to load digital

images from various sources -- such as an email attachment or an

internet site -- to an internet photo album associated with that

user's Yahoo! account. The service enabled a user to store digital

images on a Yahoo! server and then easily share the stored photo

album with other internet users by sending them the URL link to the

album's internet location.          Once loaded to the photo album, the

digital images remained automatically stored on Yahoo! servers

unless and until the user deleted them (although Yahoo! also could

eliminate access to the images by deactivating a user's account).

           Lee's   testimony        shows   that   each    type     of   stored

information or data pertaining to each Yahoo! user or "screen name"

is accessed by Yahoo! employees using the same methodology.                  The

method consists of a Yahoo! employee, such as one in the customer

care department, inputting a user name into a particular retrieval

tool associated with certain types of stored information, such as


                                     -75-
the Account Management Tool or Login Tracker.               The computer tool

then automatically accesses the stored information related to that

tool and displays it for the Yahoo! employee to review.             Some tools

compile various data; the Account Management tool, for example,

collects the IP address recorded when a user first creates an

account and the registration information provided by that user,

among other stored information.         Lee testified that these systems

of data storage and retrieval are relied upon by Yahoo! to provide

reliable and accurate data on customer accounts in order to conduct

its business as an ISP.       Lee explained that the same systems and

tools also are used to access stored data pertaining to users when

Yahoo! responds to a search warrant or any other legal process.

            There is absolutely no indication in this record that the

archives for the digital images from photo albums associated with

the various Yahoo! user names in this case (as well as the IP

addresses and other account data included with each image archive)

were created, generated, or developed outside of this routine

administrative methodology for retrieving stored user account data

-- a process which itself necessarily links the location of the

retrieved   stored    data   to   the   user     name   inputted.       That   the

retrieved   digital    images     stored    on   the    server   were   captured

electronically for purposes of transmitting them to the legal

department is no different from the location connection created

between data and user each time other types of stored data are


                                     -76-
retrieved and printed (or otherwise transmitted) for review, such

as a user's login history, "friends" list, or email "address book."

In short, the purported location statement made by the stored image

archive itself (along with other accompanying stored user data),

and reflected in the Yahoo! reports, was not made for the primary

purpose of establishing or proving a fact or past event for

criminal prosecution, but for the very functioning of the ISP

business operations.        See generally Williams, 132 S. Ct. at 2243

("the   primary   purpose      of    the    [scientific]    report,       viewed

objectively, was not to accuse petitioner or to create evidence for

use at trial"); Bullcoming, 131 S. Ct. at 2714 n.6 ("To rank as

'testimonial,'    a    statement     must   have   a    primary    purpose   of

establishing or proving past events potentially relevant to later

criminal prosecution."        (internal     quotation   marks     and   brackets

omitted)); Melendez-Diaz, 557 U.S. at 324 (noting that business

record "having been created for the administration of an entity's

affairs and not for the purpose of establishing or proving some

fact at trial . . . are not testimonial").20

          Also,       Lee    testified      that    the     Yahoo!      reports

electronically    transmitted       to   NCMEC   comprise   the    same   image

archives captured by a customer care employee (along with stored

account information gathered with the archive); the only difference


20
   The "primary purpose" inquiry of the statement's "testimonial"
nature focuses on the declarant's purpose in making the statement.
See Davis v. Washington, 547 U.S. 813, 822-23 n.1, 826-28 (2006).

                                     -77-
is that any images that the Yahoo! legal department employee does

not suspect as containing child pornography are not included in the

report.   Thus, the location link between the images and the user's

account is simply memorialized by an administrative process when

the archive is created, which is simply repeated in the Yahoo!

report    sent   to   NCMEC.   Then,   a   Yahoo!   report   receipt   is

automatically generated via computer, including the sequential list

of numeric "Legal Archive Tool" image names.

           I disagree with the majority's conclusion that the Yahoo!

reports are distinct from the other documents targeted by the

defendant in this case, such as the Account Management Tool,

because "they convey an analysis that was performed using pre-

existing data" and make "an entirely new statement reflecting []

conclusions" drawn from such an "analysis."         I suppose that this

could be the case if the government were using the Yahoo! reports

for the truth of an assertion that the images in fact were child

pornography or suspected child pornography.         But, as I began, the

government did nothing of the sort. The conveyance of any analysis

that a Yahoo! employee performed to deem some images in certain

user photo albums to be suspect was not the purpose of the

exhibits' admission.       And, I might add, it is the purported

location statement -- linking the images (and other stored data) to

the identified user name and the associated IP address -- to which

this appellant objects.        The record reflects that the location


                                   -78-
connection was not generated by a forensic analysis performed to

produce substantive evidence at a criminal trial in the manner that

was central to the testimonial nature of the certification reports

in both Melendez-Diaz and Bullcoming.

          The majority emphasizes that (1) the retrieval process

for the digital images in this case began once Yahoo! received a

tip associating images of child pornography with a particular

user's account, (2) the particular Yahoo! reports at issue were

generated as part of a process that Yahoo! developed to comply with

its legal duty to report any apparent violation of federal child

pornography laws to NCMEC, (3) the reports were delivered to NCMEC,

which operates, in part, as a type of clearinghouse for ISP reports

to law enforcement regarding suspected child pornography, and (4)

the actual Yahoo! report documents (the receipts) did not exist

before the discovery of the suspected criminal activity.               These

circumstances   do   not   alter   the    conclusion   that    the   putative

statement that there is a location connection between user and

stored data (including digital images and information relating to

the Account Management Tool or the Login Tracker) pre-existed any

customer complaint or other event that would trigger the retrieval

of such data, and the process for retrieving the various stored

data is not performed through a forensic analysis engaged in to

produce substantive evidence at a criminal trial.             And, as I have

explained, any new statement about the content of the images


                                   -79-
containing suspected child pornography was not offered for the

truth of the matter asserted.

            In summary, while I agree with the majority that evidence

does not escape testimonial hearsay status under the Confrontation

Clause simply because it may otherwise bear the characteristics of

a    business   record,    I   do   not    believe     that   the   location   link

displayed in the Yahoo! reports amounts to a testimonial statement

under current Supreme Court precedent or under our own cases.                      I

disagree with the appellant that the holdings in Melendez-Diaz and

Bullcoming compel a conclusion that admission of the various

"accompanying reports" -- which he labels as "computer forensic

evidence" -- required an opportunity to cross-examine the person(s)

who actually located the stored digital images and created a

corresponding archive associated with each user name photo album.21

And, I see nothing in the most recent Supreme Court discourse on

the    Confrontation      Clause    to    alter   my   view   on    the   import   of

Melendez-Diaz and Bullcoming holdings under the facts of this

record.    See generally Williams, 132 S. Ct. 2221..


21
     The defendant also suggests in his brief that his Sixth
Amendment concerns would have been allayed had the government
presented live testimony of a Yahoo! computer technician to explain
and verify the accuracy of the company's software tools used to
retrieve the digital images and account data. This tack, however,
essentially concedes that the reports contain no witness testimony
whatsoever and reduces his argument to one of authentication. If
this is the appellant's strategy, then the majority's footnote
remark about Rule 803(6) probably suffices for the Yahoo! reports
as well.   In the end, though, I make no judgment on authentication
because the issue before us is confined to the Sixth Amendment.

                                          -80-
           I respectfully dissent from the majority's conclusion

that   admission   of   the   Yahoo!   reports   and   NCMEC   CyberTipline

reports22 violated Cameron's rights under the Confrontation Clause,

and so I would affirm the appellant's conviction on all counts.




22
    With respect to the NCMEC CyberTipline reports, the majority
concludes that the government appeared to rely on these documents
as the sole evidence establishing the upload dates and times of the
illegal images (the so-called "Image Upload Data"). The majority
also appears to assess the record evidence to determine whether the
government appropriately established through this NCMEC evidence
the transporting-by-uploading element charged in the indictment.
There is no need to consider these issues because the timing of
image uploading is not part of the appellant's Sixth Amendment
argument.   There is also no need for me to separately analyze
whether the NCMEC CyberTipline reports contain a testimonial
statement that was offered for the truth of the matter asserted.
For present purposes I take the government at its word that such
evidence essentially parroted the substance of the Yahoo! reports.
Again, I note that the defendant makes no attempt to parse the two
types of documents when advancing his Sixth Amendment plaint.

                                   -81-
