Facebook Messages Linked to Defendant by Showing That Account Is Registered to His Email Address & Used Screen Name Associated with Him, and Messages Included Self-Identification and Use of His Nickname — Thus All = Admissions

United States v. Brinson, 772 F.3d 1314 (10th Cir. 2014):

Mr. Tarran Brinson was charged with various offenses involving trafficking in child prostitution. At trial, the prosecutor presented expert testimony on the operation of child prostitution rings, testimony by three men who had sex with a prostitute, and evidence consisting of electronic messages. Mr. Brinson was convicted and he appeals, requiring us to address six issues:

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  • Admission of Facebook and Text Messages: Mr. Brinson argues the district court erroneously admitted certain text and Facebook messages. According to Mr. Brinson, the messages are inadmissible hearsay and their introduction into evidence violated his constitutional right to confrontation. The Facebook messages do not constitute hearsay because they consist of statements of a party opponent. Thus, introduction of the Facebook messages did not violate the Confrontation Clause of the Sixth Amendment. Mr. Brinson waived his arguments regarding the text messages by failing to identify the ones that had been erroneously admitted.

 

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I. The Sting

In December 2012, a Tulsa police officer (Keith Osterdyk) was working undercover, posing as someone wanting to hire a prostitute from the "escort" section of a website called "Backpage.com."

Officer Osterdyk [**4]  noticed an advertisement (titled "Sexy London -- Let's Play 21") and called. After a brief exchange, the female on the other end stated the cost and arranged a meeting in Room 123 at a Super 8 Motel. Officer Osterdyk went to the room and was met by a girl. (We refer to the girl as "C.H.").

C.H. agreed to perform oral sex for a specific price. While Officer Osterdyk spoke, he noticed that the girl had an open cell phone on the bed. To Officer Osterdyk, an experienced vice officer, the open cell phone meant that a third party was listening.

While Officer Osterdyk remained in the room, several "back-up" officers were monitoring Room 123 from unmarked vehicles in the motel parking lot. While monitoring the room, the officers noticed a black SUV moving slowly close to Room 123.  [*1318]  The SUV had a "Jani-King" cleaning service logo on its side. The officers believed that the SUV driver might be working as security for the girl in the room.

Shortly after the black SUV appeared, C.H. picked up her phone and noticed that someone had texted her two warning messages:

1. "Don't do nothing. That's the police."

2. "People outside the room. Don't do nothing."

The messages had come from a contact listed as "Twin." [**5]

Officer Osterdyk saw an abrupt change in C.H.'s demeanor. At that point, the officer identified himself, arrested C.H., seized the cell phone, and read the two messages from "Twin."

After arresting C.H., authorities continued to investigate. One of the backup officers, Officer Zeller, visited the motel office and learned that Room 123 had been rented by Tarran Brinson. He was described as a young, skinny black male, with braids or dreadlocks, wearing a red shirt and a red Chicago Bulls hat.

The clerk also told Officer Zeller that Mr. Brinson

o had rented four other rooms at the motel during the previous week, and

o was a "regular" at the motel, always paying in cash.

The clerk gave Officer Zeller the registration records for Room 123 and the four other rooms. The registration records contained copies of Mr. Brinson's photo identification.

Finally, the clerk told Officer Zeller that Mr. Brinson usually drove a black SUV, pointing it out in the parking lot. The officers identified the SUV as the one they had seen.

II. The Arrest of Mr. Brinson

Roughly 45 minutes later, officers found Mr. Brinson in the parking lot of a nearby motel. Officers confronted Mr. Brinson, who confirmed that

o he had [**6]  rented Room 123 that night,

o he owned the black SUV with the "Jani-King" logo, and

o he had driven his SUV through the parking lot that night.

With these admissions, officers arrested Mr. Brinson.

III. Trial and Conviction

The government charged Mr. Brinson with seven crimes:

1. Conspiracy to Engage in Sex Trafficking,

2. Sex Trafficking of Children,

3. Attempted Sex Trafficking of Children,

4. Use of a Facility in Interstate Commerce in Aid of Racketeering Enterprise,

5. Coercion and Enticement,

6. Obstruction of Justice, and

7. Obstruction of Justice by Threat or Corruption.

After the government presented its case, Mr. Brinson moved for a judgment of acquittal on all charges. The court granted Mr. Brinson's motion on the count of Obstruction of Justice by Threat or Corruption, but denied the motion on the other six charges.

The jury found Mr. Brinson guilty of the remaining six charges, and the district court entered a judgment of conviction. This appeal followed.

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V. Text and Facebook Messages

Mr. Brinson argues that the district court erroneously [**10]  admitted messages from an account on Facebook.com and text messages from Mr. Brinson's cellphone. According to Mr. Brinson, these rulings violated the Federal Rules of Evidence and Mr. Brinson's Sixth Amendment right to confrontation.

We ordinarily review evidentiary rulings for abuse of discretion. United States v. Blechman, 657 F.3d 1052, 1063 (10th Cir. 2011). But we review the Sixth Amendment issue de novo. United States v. Mendez, 514 F.3d 1035, 1043 (10th Cir. 2008).

We hold that

o introduction of the Facebook messages did not constitute hearsay and their introduction did not violate the Sixth Amendment, and

o Mr. Brinson has waived his challenge to introduction of the "text messages" by failing to identify the disputed messages.

A. Facebook Messages

At trial, the prosecution offered Facebook messages written by "Twinchee Vanto." The prosecution argued that "Twinchee Vanto" was a fake name used by Mr. Brinson. Mr. Brinson challenges this argument, insisting that he did not write the Facebook messages.3 We reject this challenge and hold that the district court reasonably concluded that the prosecution had proven authorship by a preponderance of the evidence.

3   Mr. Brinson also asserts that the documents "do not meet the criteria for reliability and authentication." See Mr. Brinson's Opening Br. at 46. But, Mr. Brinson does not sufficiently develop this [**11]  argument. Thus, we deem this argument waived. See United States v. Cooper, 654 F.3d 1104, 1128 (10th Cir. 2011) (stating that "arguments inadequately briefed in the opening brief are waived") (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998)).

1. Statements of a Party Opponent

A statement is not considered "hearsay" if it is offered against a party and is the party's own statement. Fed. R. Evid. 801(d)(2)(A). Proponents of the evidence need only show by a preponderance of the evidence that the opposing party had made the statement. See United States v. Lang, 364 F.3d 1210, 1222 (10th Cir. 2004), vacated on other grounds, 543 U.S. 1108, 125 S. Ct. 986, 160 L. Ed. 2d 1034 (2005).

To link Mr. Brinson to the messages, the government had to show by a preponderance of evidence that Mr. Brinson was "Twinchee Vanto." The prosecution sufficiently  [*1321]  established that link through five facts:

1. The "Twinchee Vanto" account was registered to an email address: "tarranb@yahoo.com."

2. "Twinchee Vanto" identified himself in one message as "Tarran."

3. A witness testified that "Twinchee Vanto" had identified himself as "Tarran."

4. A phone number on the bill of sale for Mr. Brinson's SUV matched the number that "Twinchee Vanto" had given as a contact number.

5. Two witnesses testified that "Twinchee Vanto" was Mr. Brinson's "Facebook name" and that Mr. Brinson was known as "Twin."

V-VI Aplt. App. at 979, 1073, 1121-31.

Mr. Brinson presented evidence that other individuals had access [**12]  to the Facebook account and had posted messages. But the district court could reasonably find by a preponderance of the evidence that Mr. Brinson had authored the messages. See Bourjaily v. United States, 483 U.S. 171, 175, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987). Therefore, the district court properly admitted the Facebook messages as statements of a party opponent.

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