United States v. Farrad, 071718 FED6, 16-5102

Docket Nº:16-5102, 16-6730
Opinion Judge:KAREN NELSON MOORE, CIRCUIT JUDGE.
Party Name:United States of America, Plaintiff-Appellee, v. Malik F. Farrad, Defendant-Appellant.
Attorney:Michael M. Losavio, Louisville, Kentucky, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee. Michael M. Losavio, Louisville, Kentucky, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.
Judge Panel:Before: MOORE, THAPAR, and BUSH, Circuit Judges.
Case Date:July 17, 2018
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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United States of America, Plaintiff-Appellee,

v.

Malik F. Farrad, Defendant-Appellant.

Nos. 16-5102, 16-6730

United States Court of Appeals, Sixth Circuit

July 17, 2018

Argued: May 3, 2018

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 3:14-cr-00110-1-Thomas A. Varlan, Chief District Judge.

ARGUED:

Michael M. Losavio, Louisville, Kentucky, for Appellant.

Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

ON BRIEF:

Michael M. Losavio, Louisville, Kentucky, for Appellant.

Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

Before: MOORE, THAPAR, and BUSH, Circuit Judges.

OPINION

KAREN NELSON MOORE, CIRCUIT JUDGE.

Although the phrase "going undercover" may still connote high-stakes masquerading, twenty-first century undercover investigations can begin and end in cyberspace. This case stems from an undercover investigation on Facebook. The subject of the investigation, Defendant-Appellant Malik Farrad, was a felon prohibited by federal law from possessing a firearm. In June 2015, after a two-day trial, a jury found Farrad guilty of breaking that prohibition. No physical evidence was presented, no witness claimed to have seen Farrad with a gun, and Farrad himself never made any statements suggesting that he owned a gun; instead, the Government relied primarily on photographs obtained from what was evidently Farrad's Facebook account. To help prove its case, however, the Government called two police officers: Officer Garrison, who testified that criminals are particularly likely to upload photos of criminal deeds soon after committing those deeds, and Officer Hinkle, who testified at length about the similarities between the photos and a real gun, as well as the dissimilarities between the photos and the closest fake gun of which he was aware.

Farrad now challenges the sufficiency of the evidence, the admission of the photos into evidence, and the testimony that Officers Garrison and Hinkle were allowed to offer, as well as the district court's denial of his motion for a new trial, his sentencing as an armed career criminal, and the district court's failure to suppress the photos on Fourth Amendment grounds. For the reasons that follow, we AFFIRM.

I. BACKGROUND

A. Investigation, Indictment, and Pre-Trial Motions

After serving time in prison for a previous felony, Farrad was released from federal custody in January 2013. See, e.g., R. 5-1 (Warrant Application at 3) (Page ID #9). Farrad came to the attention of local law enforcement sometime after June 10 of that same year, when "[v]arious confidential informants and concerned citizens" evidently "reported observing Farrad to be in possession of one or more firearms while in Johnson City, Tennessee." Id. at 4 (Page ID #10). Some time later, a Johnson City police officer named Thomas Garrison, using an undercover account, sent Farrad "a friend request on Facebook." R. 71 (Trial Tr. Vol. I at 81, 90-91) (Page ID #679, 688-89). After Farrad "accept[ed] the friend request," Garrison was able to see more of Farrad's photos. See id. at 81 (Page ID #679). "One [photo] in particular" "caught [his] interest": a photo that showed what appeared to be three handguns "sitting on a closed toilet lid in a bathroom." Id. at 81-82 (Page ID #679-80); see also Appellant's App'x at

6. The photo had been uploaded on October 7, 2013. R. 71 (Trial Tr. Vol. I at 83) (Page ID #681); Appellant's App'x at 7.

Garrison brought the photo to the attention of Johnson City police officer and FBI task force officer Matthew Gryder, who applied on October 25, 2013, for a warrant to search Facebook's records for "information associated with the Facebook user ID MALIK.FARRAD.5." R. 5-1 (Warrant Application at 4, 10-11) (Page ID #10, 16-17). A federal magistrate judge granted the warrant application. R. 5-4 (Search and Seizure Warrant at 1) (Page ID #25). The warrant mandated execution "on or before November 6, 2013," id., and the return executed by federal law enforcement indicates that the warrant was "served electronically" on Facebook on November 1, 2013, id. at 2 (Page ID #26).

The resulting data yielded a series of additional photos that are central to this case: some show a person who looks like Farrad holding what appears to be a gun, see, e.g., Appellant's App'x at 11-14, while others show a closer-up version of a hand holding what appears to be a gun, see, e.g., id. at 16-26.[1] While none of the photos shows a calendar, date, or one-of-a-kind distinguishing feature, the person in the photos has relatively distinctive tattoos, and some of the photos show, as backdrop, the décor of the room in which they were taken. See id. at 6, 11-12, 19-20, 22-23, 25-26. Facebook records revealed that the photos had been uploaded on October 11, 2013. See id. at 12, 15, 18, 21, 24, 26.

In September 2014, a federal grand jury charged Farrad with having, "on or about October 11, 2013, . . . knowingly possess[ed] . . . a firearm, namely, a Springfield, Model XD, .45 caliber, semiautomatic pistol." R. 3 (Indictment) (Page ID #3). On March 26, 2015, Farrad filed a pro se motion seeking an evidentiary hearing, dismissal of the indictment against him, and suppression of the Facebook photos on Fourth Amendment grounds. R. 22 (Pro Se Mot.) (Page ID #85-91). The magistrate judge assigned to Farrad's case denied that motion on April 9, 2015, on the grounds that Farrad already had appointed counsel and the local rules prohibited a represented party from "act[ing] in his or her own behalf" without "an order of substitution." R. 24 (Order at 1) (Page ID #93) (quoting E.D. Tenn. Local Rule 83.4(c)). Farrad's trial counsel did not renew Farrad's motion.

The parties did, however, litigate the admission of the photos on evidentiary grounds. The Government argued that the Facebook photos qualified as business records under Federal Rule of Evidence 803(6) and that they were, as such, self-authenticating under Federal Rule of Evidence 902(11). R. 26 (Gov't's Mot. in Limine at 1) (Page ID #100). In support of its assertion, the Government introduced a certification by a Facebook-authorized records custodian, who attested that the records provided by Facebook-including "search results for basic subscriber information, IP logs, messages, photos, [and] other content and records for malik.farrad.5"-"were made and kept by the automated systems of Facebook in the course of regularly conducted activity as a regular practice of Facebook" and "made at or near the time the information was transmitted by the Facebook user." R. 26-1 (Facebook Certification) (Page ID #105). In addition to disputing admissibility under Federal Rules of Evidence 401, 402, 403, 404, 405, and 406, R. 30 (Def.'s Response to Gov't's Tr. Br. at 3) (Page ID #119), Farrad's trial counsel argued that the photos, despite the custodian's affidavit having been "done correctly under the federal rules," were "hearsay within hearsay" and did not "authenticate who took the pictures, when the pictures were taken, by whom, at what time," R. 60 (Pretrial Conf. Tr. at 11) (Page ID #456). All that the custodian could attest to, trial counsel emphasized, was "that at some point these pictures were uploaded to what [was] allegedly [Farrad's] Facebook account"; the custodian could not "testify as to . . . who took [the photos], when they were taken, where they were taken." Id. at 12 (Page ID #457). On June 15, 2015, the district court concluded that it had "found no indication of a lack of trustworthiness" and that the photos qualified as business records under Rules 803(6) and 902(11). See R. 73 (Pretrial Hr'g Tr. at 33) (Page ID #872). It also determined that the photos were relevant. See id. at 35-37 (Page ID #874-76).

B. Trial

Trial began the next day. At trial, the jury first heard from Garrison, who not only detailed his discovery of the precipitating toilet-seat photo, R. 71 (Trial Tr. Vol. I at 83) (Page ID #681), but also, in his capacity as an experienced user of social media in the service of police investigations, see id. at 80 (Page ID #678), discussed broader trends in how people who have committed crimes behave on social-media platforms. After Garrison conceded that users "can upload . . . pictures to Facebook that were taken at different times," id. at 84 (Page ID #682), the following exchange occurred: GOVERNMENT: Okay. Now, in your training and experience and drawing upon the hundreds of cases you said you've been involved in using social media, when you come across people involved in criminal conduct who have uploaded photographs to their social media account, how quickly do they do that, relative to when that...

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