Evidence from Facebook in felon in possession trial

US v. Recio:  Two police officers on patrol encountered Recio, whom they knew had outstanding warrants, with a gun visible in his waistband.  Recio fled to police, and tried to throw away the gun, which police recovered.  Recio got away but a month later was arrested.  Before trial, the government moved in limine to introduce a Facebook post, purportedly of Recio’s, with a rap lyric about carrying a firearm.  At a pre-trial hearing, the government sought to admit the Facebook post under two theories: as a direct admission; and as an adoptive admission.  The district court granted the government’s motion.  A jury found Recio guilty, and on appeal, he challenged the admission of the Facebook post, and the refusal to grant a mistrial but instead give an Allen charge. 

Recio challenged the admission of the rap lyric he purportedly posted to his Facebook account, first contending that it was not his statement, but inadmissible hearsay.  The government maintained the Facebook post was not hearsay.  The government pointed to “foundational facts,” such as Recio’s failure to use quotation marks, or attribute the lyric to an artist, or provide any other signal to his Facebook followers that someone else authored the statement.  In addition, he got the lyric slightly wrong.  Based upon these facts, according to the Fourth Circuit, a jury could infer that Recio meant to adopt the lyric as his own words. 

Next, Recio argued that the Facebook post was not relevant.  In its analysis, however, the Fourth Circuit discussed how lyrics posted by a defendant can be relevant when they match details of an alleged crime, making it more probable that a defendant, in fact, had engaged in that conduct.  Further, the Fourth Circuit stated, lyrics can show a defendant’s knowledge or motive.  The Fourth Circuit found the Facebook post relevant here, and that the risk of unfair prejudice did not substantially outweigh the probative value of the evidence.

As to Recio’s argument that the government failed to properly authenticate the Facebook post because it failed to sufficient establish that Recio authored the post, the Fourth Circuit stated that what mattered what not whether Recio did not author the post, but whether the jury could reasonably find that he did, and in light of the government’s evidence of certification by a Facebook records custodian, the Fourth Circuit found the government properly authenticated the post. 

Finally, Recio argued that the Facebook post was inadmissible character evidence.  The Fourth Circuit found that the Facebook post was not evidence of “other acts” from which the jury could make negative inferences about Recio’s character, it was direct evidence of the charged crime itself.