Commercial Litigation and Arbitration

Authentication of YouTube Videos Posted on Facebook Page by 902(11) Certifications of Records Custodians from Both Companies — Rule of Completeness Admits Otherwise Excluded Statements re Videos Only If Hearsay Rule Satisfied

United States v. Hassan, 742 F.3d 104 (4th Cir. 2014):

The appellants in these consolidated proceedings, Mohammad Omar Aly Hassan, Ziyad Yaghi, and Hysen  [**2] Sherifi, were tried jointly in the Eastern District of North Carolina and convicted of several offenses arising from terrorism activities. On appeal, the trio presents myriad challenges to their convictions and sentences. As explained below, we reject the appellants' various contentions of error and affirm.


Next, Hassan and Yaghi contend that several prosecution exhibits consisting of Facebook  [**67] pages and the files embedded therein -- including videos hosted on YouTube (and maintained by Google) -- were not properly authenticated. Hassan also challenges, on hearsay and other grounds, two videos used against him by the prosecutors. First, he maintains that the court erred in admitting a physical training video that he had posted on a website called Second, Hassan claims that a video seized from his cell phone by the FBI was also erroneously admitted.


The trial court ruled that the Facebook pages and YouTube videos were self-authenticating under Federal Rule of Evidence 902(11), and thus that they were admissible as business records. That the Facebook pages and YouTube videos were self-authenticating business records was not, however, the end of the trial court's inquiry. The court also required the government, pursuant to Rule 901, to prove  [*133]  that the Facebook pages were linked to Hassan and Yaghi.

Rule 902(11) authorizes the admission in evidence of records that satisfy the requirements of Rule 803(6)(A)-(C), "as shown by a certification of the custodian . . . that complies with a federal statute or a rule prescribed by the Supreme Court." Rule 803(6), in turn,  [**68] provides that business records are admissible if they are accompanied by a certification of their custodian or other qualified person that satisfies three requirements: (A) that the records were "made at or near the time by -- or from information transmitted by -- someone with knowledge"; (B) that they were "kept in the course of a regularly conducted activity of a business"; and (C) that "making the record was a regular practice of that activity." Turning to Rule 901, subdivision (a) thereof provides that, to "establish that evidence is authentic, the proponent need only present 'evidence sufficient to support a finding that the matter in question is what the proponent claims.'" See United States v. Vidacak, 553 F.3d 344, 349 (4th Cir. 2009) (quoting Fed. R. Evid. 901(a)). Importantly, "the burden to authenticate under Rule 901 is not high -- only a prima facie showing is required," and a "district court's role is to serve as gatekeeper in assessing whether the proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic." Id.

Hassan's and Yaghi's Facebook pages were captured via "screenshots," taken at various points in time and displaying Hassan's and Yaghi's user profiles and postings. The screenshots of the Facebook pages also included photos and links to the YouTube videos. On the Facebook pages, Hassan and Yaghi had posted their personal biographical information, as well as quotations and listings of their interests. Each Facebook page also contained a section for postings from other users, on what is called a "wall." Meanwhile, the videos in question were retrieved from Google's server. In establishing the admissibility of those exhibits, the government presented the certifications of records custodians of Facebook and Google, verifying that the Facebook pages and YouTube videos had been maintained as business records in the course of regularly conducted business activities. According to those certifications, Facebook and Google create and retain such pages and videos when (or soon after) their  [**70] users post them through use of the Facebook or Google servers.25

25   The appellants' contention that the Facebook and Google certifications are insufficient because they were made for litigation purposes several years after the postings occurred is entirely unpersuasive. It would make no sense to require a records custodian to contemporaneously execute an affidavit attesting to the accuracy of a business record each time one is created or maintained, when there is no pending litigation or need for such a certification.

After evaluating those submissions, the trial court ruled that the requirements of Rule 902(11) had been satisfied. The court then determined that the prosecution had satisfied its burden under Rule 901(a) by tracking the Facebook pages and Facebook accounts to Hassan's and Yaghi's mailing and email addresses via internet protocol addresses. In these circumstances, there was no abuse of discretion [*134]  in the admissions of any of the Facebook pages and YouTube videos.


Turning to the physical training video uploaded by Hassan to, Hassan maintains that the trial court's refusal to admit his own related postings contravened the evidentiary "rule of completeness."  [**71] The rule of completeness has its origins at common law, and is codified in Rule 106 of the Federal Rules of Evidence. Pursuant thereto, "[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." United States v. Moussaoui, 382 F.3d 453, 481 (4th Cir. 2004) (internal quotation marks omitted). As we have explained, a trial court, in applying the rule of completeness, may allow into the record "relevant portions of [otherwise] excluded testimony which clarify or explain the part already received," in order to "prevent a party from misleading the jury" by failing to introduce the entirety of the statement or document. See United States v. Bollin, 264 F.3d 391, 414 (4th Cir. 2001). Nevertheless, the rule of completeness does not "render admissible . . . evidence which is otherwise inadmissible under the hearsay rules." United States v. Lentz, 524 F.3d 501, 526 (4th Cir. 2008) (internal quotation marks omitted). Nor does the rule of completeness "require the admission of self-serving,  [**72] exculpatory statements made by a party which are being sought for admission by that same party." Id.

The physical training video posted by Hassan on depicted Hassan in a series of physical training workouts. It opened with a series of quotations on the video screen, such as "[t]here is no God but ALLAH and Muhammad is his Messenger," the "strong Muslim is better than the weak Muslim," and "[l]et's please ALLAH and train hard." Trial Ex. 399; J.A. Vol. XIV. The training video concluded with the words "support our troops," which appeared on the screen above an Arabic phrase and an image of an assault rifle. Id. After Hassan had uploaded the training video to, other users of the website posted various comments and questions, some of which were critical of Hassan. Hassan responded to them with postings of his own, including an apology for any controversy his training video had caused. Hassan then posted additional statements about his beliefs and his support of those troops fighting "for the truth." J.A. 2377. In one of those subsequent postings, Hassan said that he "do[es] not support terrorists." Id.26 Hassan's defense lawyer thus sought to introduce  [**73] into evidence -- under the rule of completeness -- the follow-up statements posted by Hassan. The court, however, sustained the hearsay objection interposed by the prosecution and excluded those statements.

26   Hassan's assertion that he "do[es] not support terrorists" was part of a lengthier statement:

The troops I support are the ones who fight for truth, whether he is Arab, American, Spanish, Europe, whatever, it doesn't matter as long as he fights for the truth. PS, I do not support terrorists.

J.A. 2377. In posting his apology, Hassan asserted:

Islam is a religion of peace but when attacked we fight back strong. I will edit the video but will probably keep my religious beliefs . . . because part of my religious faith is to become strong and in healthy shape.

Id. at 2377-78.

Hassan's excluded statements, though possibly exculpatory, do not fall within any hearsay exception that would authorize their admission into evidence. Nor was the jury likely to have been confused or misled by their exclusion. The court simply ruled that Hassan's follow-up postings on could not be used to establish the truth of any matter asserted -- specifically, to show that Hassan did not support  [**74] terrorists. That ruling was not an abuse of the court's discretion.

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