United States v. Recio, 17-4005

• Decision Date: 07 March 2018
• Docket Number: No. 17-4005,17-4005
• Citation: 884 F.3d 230
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Larry Milan RECIO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

884 F.3d 230

UNITED STATES of America, Plaintiff–Appellee,

v.Larry Milan RECIO, Defendant–Appellant.

No. 17-4005

United States Court of Appeals, Fourth Circuit.

Argued: January 24, 2018

Decided: March 7, 2018

ARGUED: Lesley Whitcomb Fierst, CAPITAL ONE, Tysons Corner, Virginia, for Appellant. Francesca Anne Liquori, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, Sapna Mirchandani, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Stephen M. Schenning, Acting United States Attorney, Baltimore, Maryland, David I. Salem, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Wilkinson and Judge Niemeyer joined.

DIANA GRIBBON MOTZ, Circuit Judge:

A jury found Larry Recio guilty of being a felon in possession of a firearm. At trial, over his objection, the district court admitted into evidence a post assertedly to Recio’s Facebook account that quoted a rap lyric. Recio appeals. He contends that the district court abused its discretion in admitting the Facebook post, and erred in declining to grant a mistrial but instead issuing an Allen charge when the jury initially indicated it was deadlocked. For the reasons that follow, we affirm.

I.

On May 15, 2015, two police officers, Shane Pumphrey and Christopher Rothenberger, were on patrol in Prince George’s County, Maryland. They spotted Recio, whom they knew had outstanding warrants, and observed a gun protruding from his waistband. As Recio fled, the officers gave chase, one by car, the other on foot. Officer Pumphrey saw Recio jump over the hood of an abandoned car and toss away the gun. The officers could not catch up to Recio, so they returned to the spot where Officer Pumphrey had seen Recio throw away the gun. There, the officers recovered a loaded black handgun. Police officers arrested Recio the following month, in June 2015.

The Government indicted Recio on August 17, 2015. Before trial, the Government filed a motion in limine seeking admission of a post to a Facebook account that the Government alleged belonged to Recio. The post, from January 28, 2016 (about eight months after the charged incident), stated:

It’s Always Tucked, Kuz I’ll B Damn If My Life Get Took!!

The post, which contained no quotation marks or attribution to another author, closely mirrors lyrics to a rap song, Get it in Blood by Bloody Jay. In relevant part, the rap song’s lyrics are: "it’s always tucked, cause I’ll be damned if I get my life took." The Government sought to introduce this post under Federal Rule of Evidence 801(d)(2), which provides that certain statements attributable to an opposing party are not hearsay.

At a pre-trial hearing, the district court heard argument as to the admissibility of the Facebook post, including whether the post was authentic and whether it might be character evidence of "other acts" prohibited by Rule 404(b). The following day, the district court granted the Government’s motion, holding that the Facebook post was admissible under Rules 801(d)(2)(A) (direct admissions) and (B) (adoptive admissions), and that the Government had sufficiently authenticated it. The court admitted the Facebook post toward the conclusion of the trial.

At the close of the trial, the court submitted the case to the jury. While deliberating, the jury sent a series of notes. The first note asked whether the Government had to prove possession of the particular gun charged in the indictment, to which the court responded in the affirmative. The second note asked to re-listen to recordings of the officers’ radio communications from the day of the incident, which the court permitted. The third note questioned whether these radio recordings had been edited to "exclude[ ] lapses," to which the court responded as the parties agreed. Around 4:30 pm, after deliberating for half a day, the jury sent a fourth note, stating:

While we recognize that we have until 5 p.m. we do not believe any further deliberations will get us closer to a verdict today or in the future.... we are deadlocked. We are each of the individual conviction, through our in depth and thorough review that our current viewpoints will be unchanged even after continued voluntary or involuntary deliberations. We have given every effort and regret that we are unable to come to a unanimous verdict.

Recio moved for a mistrial, which the district court denied. The court reasoned that though it had been "a short trial," this was only the jury’s "first indication" of a deadlock after deliberating for just "a few hours." The court called in the jurors and provided them with a modified Allen charge¹ over Recio’s objection, instructing them to "get some rest, get your mind off it, come back fresh tomorrow morning and continue your deliberations."

After deliberating for an hour the next morning, the jurors sent a fifth note, asking to see the gun, bullets, and magazine, which the court provided to them. In the late afternoon, the jury sent a final note, informing the court it had reached a unanimous verdict. The jury found Recio guilty.

Recio noted this timely appeal, challenging the district court’s admission of the Facebook post, and its refusal to grant a mistrial, but instead to issue an Allen charge.

II.

We begin by addressing Recio’s challenge to the admission of the rap lyric posted on Facebook. We review a district court’s evidentiary rulings for abuse of discretion. See Gen. Elec. Co. v. Joiner , 522 U.S. 136, 141, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Even if the court erred in admitting the evidence, we reverse only if that error was not harmless. See Fed. R. Crim. P. 52(a) ; United States v. Briley , 770 F.3d 267, 276 (4th Cir. 2014). Recio challenges the admission of the Facebook post on several grounds. We consider each in turn.

A.

Recio first contends that the Facebook post was not his statement but inadmissible hearsay. The Federal Rules do not permit admission of a hearsay statement—an out-of-court statement offered to prove the truth of the matter asserted—unless a specific exception applies. Fed. R. Evid. 801, 802. But the Rules define certain statements as "not hearsay," including a statement "offered against an opposing party" that was "made by the party" (an admission) or a statement that "the party manifested that it adopted" (an adoptive admission). Fed. R. Evid. 801(d)(2)(A), (B). The Government maintains that consistent with this Rule, the Facebook post was not hearsay.

To constitute an adoptive admission, the Government must be able to point to "sufficient foundational facts from which the jury could infer that the defendant ... acquiesced in the statement." United States v. Robinson , 275 F.3d 371, 383 (4th Cir. 2001) (emphasis added) (quoting United States v. Jinadu , 98 F.3d 239, 244 (6th Cir. 1996) ). Foundational facts were present here. Namely, Recio did not use quotation marks, attribute the lyric to the artist, or provide other signals to indicate to his Facebook audience that someone else authoredthe words in his post. Nor did he include additional explanation, commentary, or criticism that could refute an inference that he adopted the lyric as his own words. In addition, Recio slightly editorialized the song lyric. His post stated, "Kuz I’ll B Damn If My Life Get Took!!"; the original lyric is "cause I’ll be damned if I get my life took." Based on these facts, a jury could infer that by posting the lyric on Facebook, Recio meant to adopt it as his own words.

Recio suggests that those who repeat others’ lyrics rarely manifest an adoption of the views expressed in those lyrics, because lyrics are "a different person’s words" and often contain "puffery or braggadocio." Appellant Reply Br. at 5–6. To be sure, people may quote lyrics to provide criticism or commentary, to relay the lyrics to others, or simply because they like the song. But in some instances, people quote lyrics because they wish to express a certain view and believe that the words of an artist—including a rap musician—express that view especially effectively. Whether someone has adopted lyrics as his own statement thus depends on the particular facts of each case. And as explained above, the facts here were sufficient for a jury to infer that Recio adopted the rap lyric as his own statement.²

B.

Recio also maintains that the Facebook post was inadmissible because it was not relevant. See Fed. R. Evid. 402.

To be relevant, evidence must have "any tendency to make a fact more or less probable," and that fact must be "of consequence in determining the action." Fed. R. Evid. 401. The "threshold for determining whether evidence is relevant is comparatively low," and "we rarely reverse such decisions because they ‘are fundamentally a matter of trial management.’ " United States v. Kiza , 855 F.3d 596, 604 (4th Cir. 2017) (quoting United States v. Zayyad , 741 F.3d 452, 459 (4th Cir. 2014) ).

Lyrics posted or authored by a defendant can be relevant if they match details of the alleged crime. That is so because the fact that a defendant posted lyrics about engaging in certain conduct makes it more probable that the defendant in fact engaged in that conduct. See, e.g. , United States v. Belfast , 611 F.3d 783, 820 (11th Cir. 2010) (rap lyrics referring to Liberian paramilitary group were relevant to show the defendant’s "association with and continued identification as a member" of that group); Holmes v. State , 129 Nev. 567, 306 P.3d 415, 418–20 (2013) (rap lyrics describing "jacking" a necklace in a parking lot while wearing a ski mask were relevant to show that the defendant stole a necklace in a parking lot while wearing a ski mask).

Lyrics can also be relevant to show a defendant’s knowledge or motive. For example, the Eighth Circuit has held that a defendant...