In United States v. Stephen Buyer, No. 23-7202 (2d Cir. Mar. 19, 2025), the Second Circuit upholds the defendant’s trial convictions for securities fraud. This is a dense summary order, but let’s start with the ruling that jumps out.
At trial, defendant objected to admission of a Cellebrite forensic cellphone report. The analyst who actually prepared this forensic report had left the FBI, so the government sought to offer the report through a surrogate witness—per the defendant’s brief, “a last-minute substitute for a previous witness that the government was going to call.” Before this surrogate witness took the stand, the defendant objected to the testimony. The district court limited argument on the issue during trial and allowed the witness to testify, but invited the defendant to submit a supplemental written objection later that day.
So later that day the defense filed a written motion to strike the testimony. The written motion specifically argued (among other objections) that testimony by this sort of surrogate witness “violates the Confrontation Clause of the Sixth Amendment,” citing the Supreme Court’s decision in Bullcoming v. New Mexico, 564 U.S. 647 (2011).
This would seem sufficient to preserve the objection: Federal Rule of Evidence 103(a) states that a party preserves an objection to evidence when he “timely objects or moves to strike” and “states the specific ground.” Here the defendant did just that.
Nonetheless, the Circuit holds that this Confrontation Clause objection was not preserved. The Circuit complains that the defendant did not raise the Confrontation Clause specifically in his initial oral objection (“as soon” as it was known), and faults the written objection for being too short. Per this opinion, it is not sufficient (i) to state the specific grounds for the objection (the Confrontation Clause) and (ii) to cite the Supreme Court precedent that provides the basis for the objection. Experienced attorneys, or even just those with the ability to read Rule 103(a), may be surprised by this holding.
It is difficult to see this as anything other than a contrived effort to avoid reasoned consideration of the defendant’s Confrontation Clause claim. By simply labeling the claim unpreserved, the Circuit feels empowered to dispose of it by writing (without elaboration) that Cellebrite Reports have “material differences” from the blood-alcohol certifications in Bullcoming, and that the Circuit “has never applied Bullcoming to data extractions.”
But even applying plain error review, the Circuit’s reasoning here is a stretch. Bullcoming and its progeny have established the principle that testimonial forensic reports may only be introduced by the analyst responsible for the testing—not a surrogate witness. Surely this legal principle is plain already and defendants do not need to await a circuit decision on every specific type of forensic report that might be used at a criminal trial.
The Circuit itself has already recognized this. In Garlick v. Lee, 1 F.4th 122 (2d Cir. 2021), the Circuit found a state court had unreasonably applied clearly established federal law by allowing an autopsy report to be entered at trial through a surrogate witness. In other words, this prohibition on the use of a surrogate to introduce a testimonial forensic report is clear and obvious under federal law. What more did the defendant in Buyer need?
Also in Buyer, this forensic witness was not noticed or qualified as an expert, but did give testimony that, per the Circuit, “straddl[ed]” or “cross[ed]” the line into expert testimony. The Circuit holds this error harmless.
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