                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 08 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 10-50357

              Plaintiff - Appellee,               D.C. No. 8:08-cr-00039-AG-1

  v.
                                                  MEMORANDUM *
J. RANDALL ISMAY, AKA Randall J.
Ismay,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                    Andrew J. Guilford, District Judge, Presiding

                      Argued and Submitted December 5, 2011
                               Pasadena, California

Before: B. FLETCHER, SILVERMAN, and WARDLAW, Circuit Judges.

       Defendant J. Randall Ismay appeals his conviction for the transportation of

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

that the district court abused its discretion when it admitted online statements as




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
non-hearsay admissions of a party-opponent. We have jurisdiction pursuant to 28

U.S.C. § 1291. We affirm.

      Ismay asserts that the government proffered no direct evidence connecting

him to the online statements, and therefore, that these statements were not properly

admitted as his.

      A party’s statement is not hearsay when it is used against him; rather, it is an

admission, a species of non-hearsay. Fed. R. Evid. 801(d)(2). As the proponent of

the online statements, the government needed to come forward with evidence

sufficient to support a finding that Ismay was the declarant. Fed. R. Evid. 104(b);

Fed. R. Evid. 901(a) advisory committee’s note. That it did. See United States v.

Gil, 58 F.3d 1414, 1419 (9th Cir. 1995).

      Substantial circumstantial and direct evidence connects the statements in the

challenged exhibits to Ismay. His user account on his computer was password-

protected. Ismay’s name matches the screen name Randall_Ismay and the e-mail

addresses provided to “BradNH14,” an undercover police officer. Randall_Ismay

gave BradNH14 the address to Ismay’s residence, and Ismay’s computer contained

evidence of the child porn videos sent by Randall_Ismay. Moreover, Ismay

confessed to his mother that he was “guilty of doing things [he] should not have

done.” He explained to her that he was arrested for “things [he] was doing over the


                                           2
Internet.” Ismay’s conversation with his mother further supports the inference that

the incriminating online statements under his name were his.

      The district court did not abuse its discretion in admitting the online

statements.

      AFFIRMED.




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