Commercial Litigation and Arbitration

Facebook Messages from Quadriplegic Authenticated by Testimony He Can Operate Cell Phone, Text & Use Facebook, Participant in Conversation Recognized His Facebook Account & Messages Matched His Manner of Communicating

United States v. Barnes, 2015 U.S. App. LEXIS 17222 (5th Cir. Sept. 30, 2015):

Martel Torres Barnes ("Barnes"), Roger Randale Jones ("Jones"), and Kentorre D. Hall ("Hall") (collectively, the "Appellants") were charged in a superseding indictment with: (1) conspiracy to possess with intent to distribute 500 or more grams of methamphetamine ("meth"), less than fifty kilograms of marijuana, and some amount of cocaine all in violation of 21 U.S.C. §§ 841(a)(1) and 846; (2) maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a) and 18 U.S.C. § 2; (3) conspiracy to possess a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 924(o) and 2; and (4) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. Hall was also charged with the additional count of possession with intent to distribute meth in violation of 18 U.S.C. § 841(a)(1). Following a six-day trial, a jury found Appellants guilty on all counts and the district court sentenced each Appellant to life imprisonment. Appellants filed timely appeals challenging the jury's verdict and the district court's rulings on various grounds. For the reasons explained herein, we AFFIRM.



Hall argues that certain Facebook and text messages attributed to him at trial were introduced into evidence with insufficient authentication under Federal Rule of Evidence 901. This issue first arose at trial during the testimony of Holsen. Holsen testified that, although Hall is quadriplegic, he is able to operate a cell phone--including texting and using Facebook--utilizing his mouth and some limited movement in his right arm. After laying additional foundation, the Government attempted to introduce Facebook and text messages between Holsen and Hall. Hall objected to the authenticity of the evidence, and the district court overruled the objections. The introduced Facebook and text messages generally related to drug transactions between Holsen and Hall.

A district court's evidentiary decisions are reviewed for abuse of [*11]  discretion and any error in admitting evidence is subject to harmless error review. United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007). Authentication is a condition precedent to the admission of evidence and is satisfied when a party presents evidence sufficient "to support a finding that the item is what the proponent claims." Fed. R. Evid. 901(a); United States v. Barlow, 568 F.3d 215, 220 (5th Cir. 2009). However, "[t]he standard for authentication is not a burdensome one." United States v. Jackson, 636 F.3d 687, 693 (5th Cir. 2011).

The Government laid sufficient foundation regarding Holsen's Facebook and text messages. Holsen testified that she had seen Hall use Facebook, she recognized his Facebook account, and the Facebook messages matched Hall's manner of communicating. She also testified that Hall could send text messages from his cell phone, she had spoken to Hall on the phone number that was the source of the texts, and the content of the text messages indicated they were from Hall. Although she was not certain that Hall authored the messages, conclusive proof of authenticity is not required for the admission of disputed evidence. United States v. Jimenez Lopez, 873 F.2d 769, 772 (5th Cir. 1989). As the district court correctly recognized, the jury holds the ultimate responsibility for evaluating the reliability of the evidence. See Barlow, 568 F.3d at 220.8

8   Hall's citations to United States v. Winters, 530 F. App'x 390 (5th Cir. 2013), and United States v. Alejandro, 354 F. App'x 124 (5th Cir. 2009), are inapposite. In Winters, the Government suggested that the defendant owned or controlled items present in pictures from the defendant's social media webpage, but the authenticating witness was "not able to recognize and identify the objects in the photos or show that [the defendant] . . . had possession or control of the pictured items." Winters, 530 F. App'x at 395. In contrast, here Holsen testified that the messages from Hall's Facebook page represented her conversations with Hall, and Holsen provided testimony suggesting that she was in fact conversing with Hall. Alejandro actually appears to support the Government's argument: the court there upheld the introduction of a computer-generated map because the sponsoring witness testified that (1) he was familiar with the area depicted in the map and (2) the map was accurate. 354 F. App'x at 128.

Regardless, any potential error in admitting the text and Facebook messages was harmless. The text and Facebook messages at issue were about drug transactions, and were, therefore, relevant to all of the charged counts. However, the content of the messages was largely duplicative of what Holsen and numerous other witnesses testified [*13]  to directly. Improperly admitting evidence that is duplicative of testimony at trial does not warrant reversal under harmless error review. See United States v. Bell, 367 F.3d 452, 469 (5th Cir. 2004). Further, any error was also harmless "given the overwhelming evidence of [Hall's] guilt." See United States v. Clark, 577 F.3d 273, 288 (5th Cir. 2009) (collecting cases).

Therefore, we conclude that Hall's challenge to the introduction of Facebook and text messages at trial is without merit.

Share this article:


Recent Posts