United States v. J. Randall Ismay

U.S. Court of Appeals for the Ninth Circuit
United States v. J. Randall Ismay, 461 F. App'x 545 (9th Cir. 2011)

United States v. J. Randall Ismay

Opinion

MEMORANDUM *

Defendant J. Randall Ismay appeals his conviction for the transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(l), (b)(1), and contends that the district court abused its discretion when it admitted online statements as 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 de-clarant. 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 RandalLIsmay and the email addresses provided to “BradNH 14,” an undercover police officer. RandalLIs-may gave BradNH 14 the address to Is-may’s residence, and Ismay’s computer contained evidence of the child porn videos sent by RandalLIsmay. 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 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.

*

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Reference

Full Case Name
UNITED STATES of America, Plaintiff-Appellee, v. J. Randall ISMAY, AKA Randall J. Ismay, Defendant-Appellant
Status
Unpublished