United States v. Lizarraga-Tirado

• Decision Date: 18 June 2015
• Docket Number: No. 13–10530.,13–10530.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Paciano LIZARRAGA–TIRADO, aka Pasiano Lizarraga–Tirado, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

789 F.3d 1107

UNITED STATES of America, Plaintiff–Appellee

v.Paciano LIZARRAGA–TIRADO, aka Pasiano Lizarraga–Tirado, Defendant–Appellant.

No. 13–10530.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 14, 2015.

Filed June 18, 2015.

Roger H. Sigal (argued), Law Offices Roger H. Sigal, Tucson, AZ, for Defendant–Appellant.

Ryan J. Ellersick (argued), Assistant United States Attorney, Robert L. Miskell, Assistant United States Attorney, Appellate Chief, John S. Leonardo, United States Attorney, United States Attorney's Office, Tucson, AZ, for Plaintiff–Appellee.

Appeal from the United States District Court for the District of Arizona, Frank R. Zapata, Senior District Judge, Presiding. D.C. No. 4:13–cr–00213–FRZ–LAB–1.

Before: ALEX KOZINSKI and SUSAN P. GRABER, Circuit Judges, and MICHAEL A. PONSOR,^* Senior District Judge.

OPINION

KOZINSKI, Circuit Judge:

Plotting coordinates on a map used to require a sextant, a compass and quite a bit of skill. Today, anyone can do it with a few clicks of the mouse. This appeal raises a question born of that newfound technological prowess: Are a Google Earth satellite image and a digital “tack” labeled with GPS coordinates hearsay?

I

On January 17, 2003, defendant was arrested near the United States–Mexico border. He was charged with illegal reentry under 8 U.S.C. § 1326 as a previously removed alien who “entered and was found in the United States.” At trial, defendant disputed that he had entered the United States before his arrest. He testified that he was still on the Mexico side of the border, waiting for instructions from a smuggler when he was arrested. Because he was arrested on a dark night in a remote location, he insisted that the arresting Border Patrol agents must have accidentally crossed the border before arresting him.

The arresting agents, Garcia and Nunez, testified that they were very familiar with the area where they arrested defendant and were certain they arrested him north of the border. Agent Garcia also testified that she contemporaneously recorded the coordinates of defendant's arrest using a handheld GPS device. To illustrate the location of those coordinates, the government introduced a Google Earth satellite image, attached as Appendix A.

Google Earth is a computer program that allows users to pull up a bird's eye view of any place in the world. It displays satellite images taken from far above the earth's surface with high-resolution cameras. Google Earth superimposes certain markers and labels onto the images, such as names of towns and locations of borders. Relevant here, it also offers two ways for users to add markers of their own. A user can type GPS coordinates into Google Earth, which automatically produces a digital “tack” at the appropriate spot on the map, labeled with the coordinates. A user can also manually add a marker by clicking any spot on the map, which results in a tack that can be labeled by the user.

The satellite image introduced at trial depicts the region where defendant was arrested. It includes a few default labels, such as a nearby highway, a small town and the United States–Mexico border. It also includes a digital tack labeled with a set of GPS coordinates. Agent Garcia testified that the GPS coordinates next to the tack matched the coordinates she recorded the night she arrested defendant. On that basis, she surmised that the tack marked “approximately where [she was] responding to” on the night of defendant's arrest. Because the tack is clearly north of the border, the exhibit corroborated the agents' testimony that defendant was arrested in the United States. Defendant's lawyer cross-examined Agent Garcia about whether she had recorded the GPS coordinates accurately. But he couldn't cross-examine her about the generation of the satellite image or the tack because Agent Garcia hadn't generated them. Indeed, there was no testimony regarding the origin of the satellite image or the tack, and the record doesn't reflect whether the tack was automatically generated or manually placed and labeled. Defense counsel objected to the satellite image on hearsay grounds. The district court overruled that objection and admitted the image.

II

Defendant claims that both the satellite image on its own and the digitally added tack and coordinates were impermissible hearsay. The rule against hearsay bars admission of out-of-court statements to prove the truth of the matters asserted. Fed.R.Evid. 801(c)(2), 802 ; see also United States v. Arteaga, 117 F.3d 388, 395 (9th Cir.1997). For hearsay purposes, a statement is defined as “a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.” Fed.R.Evid. 801(a). In defendant's view, the satellite image is hearsay because it asserts that it “accurately represented the desert area where the agents worked,” and the tack and coordinates are hearsay because they assert “where the agents responded and its proximity to the border.”

We first consider whether the satellite image, absent any labels or markers, is hearsay. While we've never faced that precise question, we've held that a photograph isn't hearsay because it makes no “assertion.” See United States v. May, 622 F.2d 1000, 1007 (9th Cir.1980) ; see also United States v. Oaxaca, 569 F.2d 518, 525 (9th Cir.1978). Rather, a photograph merely depicts a scene as it existed at a particular time. The same is true of a Google Earth satellite image. Such images are produced by high-resolution imaging satellites, and though the cameras are more powerful, the result is the same: a snapshot of the world as it existed when the satellite passed overhead. Because a satellite image, like a photograph, makes no assertion, it isn't hearsay.

The tack and coordinates present a more difficult question. Unlike a satellite image itself, labeled markers added to a satellite image do make clear assertions. Indeed, this is what makes them useful. For example, a dot labeled with the name of a town asserts that there's a town where you see the dot. The label “Starbucks” next to a building asserts that you'll be able to get a Frappuccino there. In short, labeled markers on a satellite image assert that the labeled item exists at the location of the marker.

If the tack is placed manually and then labeled (with a name or GPS coordinates), it's classic hearsay, akin to Aronson v. McDonald, 248 F.2d 507, 508–09 (9th Cir.1957), where we held that hand-drawn additions to a map—there, topography lines—were hearsay. Google Earth allows for the functional equivalent of hand-drawn additions, as a user can place a tack manually and then label it however he chooses. This is like drawing an X on a paper map and labeling it “hidden treasure.” That would be an assertion by the person drawing the X that treasure can be found at that location. Similarly, a user could place a tack, label it with incorrect GPS coordinates, and thereby misstate the true location of the tack.

Because there was no evidence at trial as to how the tack and its label were put on the satellite image, we must determine, if we can, whether the tack was computer-generated or placed manually. Fortunately, we can take judicial notice of the fact that the tack was automatically generated by the Google Earth program. By looking to “sources whose accuracy cannot...