Tuesday, April 03, 2007


In United States v. Husein, 478 F.3d 318 (6th Cir. 3/2/07), the government attempted to supplement the record with facts it cited as coming from "westlaw.com," but providing no other citation. The Court of Appeals held that a party may not by-pass the fact-finding process of the lower court and introduce new facts in its brief on appeal. While F.R.App.P. 10(e)(2) allows the correction of misstatements in the record, it does not allow the introduction of new evidence in the court of appeals. Nor did the circumstances of this case allow the application of judicial notice under F.R.Evid. 201(b) which requires that "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Referring to the generality of the government cite, the Court stated, "Although the relevant information might well be available in one of Westlaw's many online databases, that fact alone, without any guidance from the government as to where in Westlaw one might locate the information, hardly fulfills the mandate of Rule 201(d)."

Despite this position, in several cases recently the appellate record appears to have been supplemented with information from the Internet – by the Court. In United States v. Whited, No. 05-5959 (6th Cir. 1/9/07), a methamphetamine case, the issue was whether the 6-level Guidelines enhancement for "substantial risk of harm" applied. In deciding that it did, the Court of Appeals, noting that defendant had been arrested in a motel with a meth lab present in the room, states, "According to travel web sites, the motel is an 81-unit complex. ... Whited's methamphetamine laboratory was in a densely populated area. As noted, the motel room where Whited operated the laboratory was one of 81 units -- more than 10 times the number of units in Layne." (slip op. at 4). There is no cite to which websites were consulted to get this figure. That "fact" was used to affirm application of the enhancement.

The citation to the Internet in Whited suggests that the information concerning the size of the motel was not available in the record. Without a citation to the specific websites from which the information came, it is also not possible to determine whether the sources are those whose accuracy cannot reasonably be questioned.

In United States v. Martin, No. 04-6428 (6th Cir. 2/21/06), the appellant/defendant was attacking the meth conversion ratio in the Guidelines as not being in compliance with the Congressional directive creating it. As a part of its holding, the Court of Appeals notes, "The DEA report on which the Commission based its conversion ratio is no longer available on the DEA website and is not part of the record in the present case. A document that appears to be the report, however, remains available through another publically accessible website. See Gene Haislip, Methamphetamine Precursor Chemical Control in the 1990's (1996), http://www.erowid.org/archive/rhodium/chemistry/dojmeth3.txt (stating that '[a]ctual yield in clandestine labs is typically in the range of 50 to 75 percent') (last visited Feb. 14, 2006)."

At least in this case the Court notes the source of the information and the date on which it was viewed. Even so, the appellate court can't find a document in the record so it searches it out on the Internet, finds what might be the document (unchanged at least as of the last time the Court visited the website) and then cites it in a published opinion. In both Whited and Martin the Court has filled in the blanks for the prosecution when its proof was lacking.

In Scipio v. Sony Music Entertainment, Inc., 173 Fed.Appx. 385 (6th Cir. 2006) (unpublished), a music copyright contest, the court refers to different websites where one can listen to the songs alleged by the plaintiff to have been sampled. "fn 2: To hear 'Dove,' go to http://www.cymande.co.uk/music/music.htm (click on 'Cymande 1972,' and then song six, 'Dove'). fn 4: For an excerpt, go to http://www.artistdirect.com/nad/store/artist/album/0,,226252,00.html (scroll down to song nine)." Now, maybe these songs are in the record, but if so, there is no corresponding record cite. While the issue in the appeal was whether or not one of the parties should be bound by an agreed settlement, would the legitimacy of the claim affect the appellate court's decision? That is, if the Court of Appeals listened to the songs and decided for themselves that the song had been sampled, would that affect the way they viewed the potential settlement? Should they have the ability to go outside the record? If they already have that ability (which this case makes clear they do), should they exercise it?

Does this use of the Internet raise any issue about the integrity of the appellate record? For what information can the Court of Appeals look on the Internet? For what information can it not look? What says so? What about the reliability of the information that it searches? (the Wikipedia factor) What if the report that it found in Martin had been changed after being used by the DEA? How would one know (since the original was never put into the court record in the first place)? What if the Court bases its decision on information not in the record but retrieved from the Internet, as in Whited? If the Court can cite to information outside the record, but garnered from the Internet, can the parties do the same? What are the limits of such citation? Just what is the source of the information that is being cited? That is, who’s on the other end and what is their motive or angle for posting the information in the first place?

What is to stop the Department of Justice from directing other executive branch law enforcement agencies to post on their websites on the Internet information to which DOJ wants to cite in their briefs (but which is not in the record developed in the district court)? In civil cases, where companies often have very active websites, what is to stop them from posting information that could be helpful to their appeal?

The Internet is full of information, some accurate, some not. If it is going to be cited to just like the dictionary, there should be some discussion about when such is appropriate and what rules must be in place to protect the integrity of the fact-finding function of the courts and the parties. In Husein, the Court discusses some aspects of this question when the citation is being done by a party. To date, however, no discussion appears to have taken place when the citing is being done by the Court.

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