United States v. Adamu: Automated Forensic Reports Held Non-Testimonial and §959’s Extraterritorial Reach Reaffirmed

Introduction

United States v. Adamu, Nos. 23-6561 & 23-6696 (2d Cir. July 21, 2025), presented the Second Circuit with an intricate international narcotics prosecution arising from a “black-flight” cocaine-smuggling scheme operated with a Gulfstream jet. The appellate challenge by pilots Jibril Adamu and Jean-Claude Okongo Landji required the court to address three core issues:

• Whether 21 U.S.C. § 959 grants the United States jurisdiction to prosecute overseas possession-with-intent-to-distribute cocaine.
• Whether the Government’s inadvertent seizure of defendants’ legal papers violated the Sixth Amendment and Kastigar v. United States safeguards.
• Whether admitting Croatian Cellebrite extractions of defendants’ mobile phones—without live testimony from the Croatian technician—breached the Confrontation Clause or the evidentiary authentication rules.

The court affirmed the convictions and, while doing so, articulated two principles of particular precedential weight:

1. Machine-generated forensic extraction reports constitute non-testimonial evidence and therefore fall outside the Confrontation Clause.
2. § 959 applies extraterritorially to possession-with-intent-to-distribute narcotics, reaffirming United States v. Epskamp within the Second Circuit despite contrary authority from other circuits.

Summary of the Judgment

The panel (Parker, Bianco & Nardini, JJ.) unanimously:

• Rejected the jurisdictional attack, holding § 959 applies extraterritorially in its entirety (including possession with intent) and that a subsequent panel cannot overrule Epskamp.
• Rejected the Sixth-Amendment/Kastigar challenge, finding (a) only one seized document—the “Šušnjar Memorandum”—was privileged, (b) the Government never reviewed it, and (c) even if minimal exposure occurred, the prosecution was built on wholly independent evidence, making any error harmless.
• Upheld the admission of cellphone extractions:
  • Authentication satisfied Rule 901 via circumstantial evidence (IMEI numbers, file sizes, defendants’ admissions of ownership).
  • Extraction reports were computer-generated raw data, not hearsay “statements,” hence non-testimonial; therefore, no Confrontation Clause violation.
  • Any arguable error was harmless given overwhelming independent evidence (cooperating witness, undercover recordings, physical seizure of cocaine).

Analysis

A. Precedents Cited and Their Influence

• United States v. Epskamp, 832 F.3d 154 (2d Cir. 2016) – Established § 959’s full extraterritorial application; the panel relied on stare decisis to foreclose the appellants’ jurisdictional argument.
• United States v. Thompson, 921 F.3d 263 (D.C. Cir. 2019) – Offered a narrower reading of § 959; invoked by defendants but explicitly rejected as non-binding.
• Kastigar v. United States, 406 U.S. 441 (1972) – Framework for determining whether prosecution is tainted by exposure to privileged or immunized material; used in evaluating the Sixth-Amendment claim.
• United States v. Schwimmer, 924 F.2d 443 (2d Cir. 1991); United States v. Ginsberg, 758 F.2d 823 (2d Cir. 1985) – Second Circuit standards for attorney-client intrusion claims; reinforced requirement of prejudice and “intentional invasion.”
• Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) & Bullcoming v. New Mexico, 564 U.S. 647 (2011) – Key Confrontation Clause precedents on forensic reports; the court distinguished them because the extraction reports were machine-generated.
• Smith v. Arizona, 602 U.S. 779 (2024) – Clarified separation between hearsay and testimonial analysis; cited to underline that raw data is not a “statement.”

B. Legal Reasoning

1. Extraterritorial Jurisdiction under § 959
   The court treated § 959(c) & (d) as a single statutory scheme expressly aimed at international trafficking. Epskamp’s rationale—that Congressional intent to regulate worldwide narcotics distribution is “unmistakable”—remains binding. The panel emphasized intra-circuit hierarchy: only the en banc court or the Supreme Court can overrule Epskamp.
2. Sixth-Amendment/Kastigar Framework
   • Privilege Threshold – Defendants failed to show that highlighted court filings or personal notes had actually been communicated to counsel. Only the Croatian attorney’s memorandum was privileged.
   • Government Exposure – District court’s factual finding that no one on the prosecution team reviewed the privileged memo was not clearly erroneous.
   • Independent Source – Even assuming minimal exposure, all strategic decisions and the evidence introduced were derived from Cardona’s cooperation, undercover recordings, and third-party witnesses—“wholly independent” under Kastigar.
   • Harmlessness – Overwhelming evidence rendered any error inconsequential.
3. Authentication & Confrontation Regarding Cellebrite Extractions
   • Rule 901 – Circumstantial markers (IMEI, file size parity, defendants’ admissions) sufficiently linked reports to the seized phones.
   • Non-Testimonial Nature – Because the reports were auto-generated digital images, they contained no human assertions and thus did not trigger Confrontation Clause protections. The court echoed Justice Sotomayor’s Bullcoming concurrence on machine-generated results.
   • Harmless-Error Analysis – Even if testimonial, the impact relative to cooperative witness testimony, undercover videos, and the physical cocaine was negligible.

C. Impact on Future Litigation

• Digital Forensics – The designation of automated Cellebrite reports as non-testimonial provides prosecutors within the Second Circuit— and likely persuasive authority elsewhere—greater latitude to admit machine-generated data without producing the original examiner. Defense strategy will shift toward Rule 702/Daubert challenges or chain-of-custody attacks rather than Confrontation arguments.
• International Narcotics Cases – The reaffirmation of § 959’s extraterritorial scope forecloses jurisdictional challenges in the Second Circuit premised on possession-with-intent theory. Defendants must now pivot to venue, mens rea, or constitutional due-process arguments instead.
• Attorney-Client Privilege Breach Claims – The opinion underscores the importance of evidentiary showings. Merely labeling personal notes as “privileged” is insufficient; defendants must demonstrate actual communication of the substance to counsel.
• Inter-Circuit Tension – By declining to follow D.C. Circuit’s Thompson, the Second Circuit creates a sharper split, increasing the likelihood of Supreme Court review on § 959’s reach.

Complex Concepts Simplified

Extraterritorial Jurisdiction: Congress can explicitly apply U.S. criminal laws to conduct occurring abroad. Section 959 is such a statute; it targets global drug traffickers if the drugs are destined for the United States—or simply if U.S. nationals are involved—even when the actual possession occurs on foreign soil.

Kastigar Hearing: A special evidentiary hearing where the Government must show its case is untainted—built on evidence entirely independent of any privileged or immunized material to which agents may have been exposed.

Machine-Generated vs. Testimonial Evidence: The Confrontation Clause only covers out-of-court statements by humans that are testimonial in nature (i.e., created for use at trial). Raw data automatically produced by a device contains no human assertion, so it is normally outside the Clause.

Authentication under Rule 901: The proponent of evidence need only produce enough proof so a reasonable juror could think the item is what it purports to be—often shown through circumstantial indicia rather than direct testimony from the person who collected or generated the evidence.

Conclusion

United States v. Adamu fortifies two vital pillars of federal criminal procedure within the Second Circuit: (1) the broad extraterritorial application of § 959 to possession-with-intent conspiracies, and (2) the non-testimonial status of automated forensic extraction reports. By reaffirming Epskamp and aligning digital-forensics jurisprudence with the machine-generation rationale hinted at in Supreme Court dicta, the court offers clear guidance for prosecutors and defense counsel alike. Future litigants seeking to exclude Cellebrite or similar data will likely focus on reliability, chain of custody, or Rule 702 expert-qualification grounds rather than the Confrontation Clause. Overall, Adamu illustrates the judiciary’s pragmatic balance between safeguarding constitutional protections and accommodating the evidentiary realities of transnational, technology-driven crime.