New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Facebook Authentication — 902(11) Certification from Facebook Custodian Plus Contents Tying Account to Party (Photos, Phone Number, Self-Identification Message Contents)

Download PDF

United States v. Landaverde-Giron, 2018 U.S. Dist. LEXIS 24743, 2018 WL 902168 (D. Md. Feb. 14, 2018):

Raul Ernesto Landaverde-Giron has been charged with five felony counts related to his alleged participation in the gang known as La Mara Salvatrucha ("MS-13"). Before the Court is the Government's Motion for Pretrial Determination of Authentication of certain Facebook records, pursuant to Federal Rules of Evidence 803(6) and 902(11). ECF No. 200. Landaverde-Giron opposes the Motion. ECF No. 205. For the reasons that follow, the Government's Motion is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 5, 2016, a federal grand jury charged Landaverde-Giron and several co-defendants1 in a Third Superseding Indictment (the "Indictment") with crimes relating to the defendants' participation in MS-13. ECF 105. Specifically, the Indictment charged [*2]  Landaverde-Giron with: conspiracy to participate in a racketeering enterprise; conspiracy to commit murder in aid of racketeering; murder in aid of racketeering; use, carry brandish, and discharge of a firearm during a crime of violence; and murder resulting from the use, carrying, brandishing, and discharging of a firearm during a crime of violence. ECF No. 105.

Following his indictment, Landaverde-Giron, through counsel, filed several motions to suppress various pieces of evidence. Of particular relevance, on March 3, 2017, Landaverde-Giron filed a Motion to Suppress the contents of a Facebook account associated with him that were seized pursuant to a search warrant. ECF No. 125. Following a hearing, the Court denied the motion on March 31, 2017.2 ECF Nos. 159, 162.

The Government has now filed a Motion seeking a pretrial ruling authenticating these Facebook records pursuant to Federal Rule of Evidence 902(11) (ECF No. 200), which Landaverde-Giron opposes.

II. LEGAL STANDARD

Federal Rule of Evidence 902(11) authorizes the admission of records into evidence that satisfy the requirements of Rule 803(6)(A)-(C), "as shown by a certification of the custodian." Rule 803(6), in turn, provides that business records are admissible if it is shown by a certification of their custodian that: [*3]  1) the records were "made at or near the time by—or from information transmitted by—someone with knowledge"; 2) they were "kept in the course of a regularly conducted activity of a business"; and 3) "making the record was a regular practice of that activity." Fed. R. Evid. 803(6).

Rule 901(a) also provides that to satisfy authentication or identification of evidence, "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." 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.'" United States v. Hassan, 742 F.3d 104, 133 (4th Cir. 2014) (quoting United States v. Vidacak, 553 F.3d 344, 349 (4th Cir. 2009)).

III. ANALYSIS

Here, the Government is seeking a preliminary ruling that it will meet its prima facie burden of authenticating the Facebook account records of User Number 100001663883752 through business records certifications, together with extrinsic evidence which the Government represents will establish it is an account used by Landaverde-Giron. The Government submits Facebook records are self-authenticating under Rule 902(11). Accordingly, [*4]  attached to its Motion is a Certificate of Authenticity signed by a Facebook business records custodian, which certifies that the Facebook records at issue were "made and kept by the automated systems of Facebook in the course of regularly conducted activity as a regular practice of Facebook . . . [and] were made at or near the time the information was transmitted by the Facebook user." ECF No. 200-2.

The Government argues that, through other extrinsic evidence, it has made a prima facie showing that the account user is Landaverde-Giron. Specifically, the Government has submitted an exhibit showing that the user name on the account is "Raul E. Giron" as well as photographs associated with the account, which appear to be self-taken pictures that are clearly of Landaverde-Giron. ECF Nos. 200-6,200-7, 200-8. The Government also asserts that a review of the conversations conducted between the account and others shows that the user is a Spanish speaker who identifies himself as "El Decente . . . from Normandie." ECF No. 200 at 6. As detailed in the Indictment, Landaverde-Giron is alleged to be a member of the Normandie Loco Salvatruchas in Maryland and "multiple cooperating witnesses have [*5]  informed investigators that defendant Landaverde-Giron's 'gang name' was 'Decente.'" Finally, during at least two conversations, the Facebook user provides others with his telephone number—a number that investigators determined was being used by Landaverde-Giron in 2014. Id.

In opposing the Motion, Landaverde-Giron urges the Court to adopt the approach taken by the U.S. Court of Appeals for the Third Circuit in United States v. Browne, 834 F.3d 403, 411 (3d Cir. 2016). He argues that the records custodian can only confirm that the depicted communications took place or certain postings were uploaded by a certain account, not that they are connected to him. Because the Government will seek to introduce the chat logs themselves, not just the date a particular chat log occurred, the Certificate of Authenticity, Landaverde-Giron argues, is not sufficient to establish that he authorized the communications nor that he uploaded the photographs.

The Court is satisfied that the Facebook records are proper business records that meet the requirements of Rule 902(11) and may be admitted based on the accompanying Certificate of Authenticity. Though Landaverde-Giron fairly points out that this merely certifies that the postings and communications are connected with [*6]  a certain account, this is not the end of the Government's submission. The Government has also provided sufficient extrinsic evidence, via biographical information, photographs, nicknames, and conversations, to show that this account is linked to Landaverde-Giron. See Hassan, 742 F.3d at 133, 134 (holding that Facebook records were properly authenticated where screenshots contained the defendant's user profiles, biographical information, and photographs and the account was linked to the defendant's email address via internet protocol addresses). Indeed, even the Third Circuit in Browne noted that "it is no less proper to consider a wide range of evidence for the authentication of social media records than it is for more traditional documentary evidence." Browne, 834 F.3d at 413 (concluding that the Government "provided more than adequate extrinsic evidence to support that the disputed Facebook records reflected online conversations that took place" between the defendant and others).

In sum, the Facebook records are properly authenticated and sufficiently linked to Landaverde-Giron.

IV. CONCLUSION

For the foregoing reasons, the Government's Motion for Pretrial Determination of Authentication of certain Facebook records is GRANTED.

 

1 As of February 14, 2018, five of Landaverde-Giron's six co-defendants have pled guilty. Accordingly, the Government's Motion remains relevant only as it pertains to Landaverde-Giron.

2 The other motions to suppress, which are not relevant to the present motion, were also denied.

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

Criminal Spoliation Can Be A Due Process Violation — Defendant Must Show That (1) The Evidence Had Exculpatory Value Before It Was Destroyed, (2) Defendant Is Unable to Obtain Comparable Evidence by Reasonable Means, and (3) Bad Faith Failure to Preserve

1) Rule 11 Sanctions: “No First Amendment Exception to a Rule 11 Violation” — “[T]he First Amendment Covers Novel, Nonfrivolous Arguments, But Many Frivolous Arguments Are Also Novel” (Good Quotes) — Frivolous To Continue To Make Rejected Novel Arguments; (2) FRAP 38 Sanctions: District Court In Best Position to Set Sanctions, Attorney’s Fees and Costs

3 Prerequisites for Inherent Power and § 1927 Sanctions in Second Circuit: (1) Bad Faith, (2) Conduct That Is Entirely Without Color [Thus, An Ill-Motivated Colorable Position Appears to Be Protected in the Second Circuit], and (3) Improper Purpose— “To Gain A Strategic Advantage” Is An Improper Purpose — Due Process Satisfied by Opponent’s Motion and Multiple Court Conferences, After Which Target Was Allowed to Submit Additional Letters

Inherent Power Sanctions — Untimeliness as Laches — Laches Properly Applied to Deny Sanctions Motion — Note Waived Defenses to Laches

Rule 37(c)(1) Sanctions: Substantial Justification or Harmless Error (Ninth Circuit Factors) — Erie: When State Supreme Court Has Not Squarely Addressed an Issue, Circuit Must Predict How It Would Rule, Using Intermediate Appellate Decisions, Decisions from Other Jurisdictions, Statutes, Treatises And Restatements for Guidance

(1) Appellate Review of Inherent Power Sanctions (7th Circuit): Factual Findings Reviewed for Clear Error, Choice of Sanction for Abuse of Discretion — 4-Element Test for Reversal; (2) Sanctions and Class Actions: Monetary Sanctions Properly Imposed on Defendants for Improper Communications with Class Members (Represented Parties) — “[I]f The Class And The Class Opponent Are Involved In An Ongoing Business Relationship, Communications From The Class Opponent To The Class May Be Coercive” (Good Quote); (3) Monetary Sanctions under Goodyear v. Haeger: If Same Fact-Gathering Would Have Been Conducted Absent The Misconduct, No But-For Causation — But Only “Rough Justice” Required, “Not Accountant-Like Precision” (Good Quote) — Once Misconduct Is Clear, Time Spent Ferreting It Out Compensable under Goodyear; (4) Goodyear Did Not Overrule Long-Standing Rule That Courts May Impose Modest Civil Monetary Sanctions to Curb Litigation Abuse; (5) Appellate Jurisdiction Lacking Where Sanctioned Attorney Fails to File Notice of Appeal and Lawyer’s Intent to Appeal Not Apparent from Client’s Notice; (5) Rule 11 Improper Purpose — Party May Have Many Purposes for Pursuing Claim — As Long As Claim Is Supported by Good Faith Belief in the Merits, “A Parallel Reason Does Not Violate Rule 11” — To Deny A Motion for Sanctions, The District Court Need Not Address Every Argument: “Arguments Clearly Without Merit Can, And For The Sake Of Judicial Economy Should, Be Passed Over In Silence” (Good Quote); Non-Monetary Sanction on Counsel: Complete Twice The Required Amount Of Professional Responsibility Hours For Her Next Continuing Legal Education Cycle Imposed By The State Bar

(1) Spoliation: Sanctions Are Warranted Only If the Movant Establishes That A Reasonable Trier of Fact Could Find That The Destroyed Evidence Would Support A Claim Or Defense — § 1927 Sanctions: “Courts Often Refuse to Award Sanctions When Both Parties Contributed to the Waste of Judicial Resources” (Good Quote)

No Sanctions Imposed on Counsel Who Submitted A.I.-Generated Phony Cases Without Checking Them in Good Faith on The Mistaken Assumption They Had Been Provided by Highly Respected Co-Counsel Rather Than His Criminally-Convicted, Disbarred Client — No Sanctions on Client Who Had No Access to LEXIS or Westlaw to Check the Phony Cases and Submitted Them in Good Faith: “It Would Have Been Downright Irrational For Him To Provide Fake Cases For [His Lawyer] To Include In The Motion Knowing They Were Fake —

(1) Electronic Spoliation — Rule 37(e)(2) Dismissal Sanction — Temporal Proximity of Spoliation to Production Due Date = Circumstantial Evidence of Intent; (2) While Discovery Sanctions Are Reviewed For Abuse Of Discretion, Findings Of Fact Related To Discovery Sanctions Are Reviewed For Clear Error; (3) Dismissal under Rule 37(e)(2) Plus Attorney’s Fees under Inherent Power Appropriately Combined [But see 2015 Advisory Committee Note: “New Rule 37(e) … authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures. forecloses reliance on inherent authority or state law to determine when certain measures should be used.”]; (4) Compensatory Sanctions under Goodyear v. Haeger Appropriately Include Fees and Costs Resulting from Attempts to Settle Spoliation Motion

(1) FRAP 38 Sanctions Inapt for Appeal That Is Weak — “Borderline Frivolous” — Test Is Whether Appellant Should Have Known the Appeal Had Absolutely No Chance of Success — (2) Lay Opinion Testimony under Rule 701: Nub of Helpfulness Requirement Is to Exclude Testimony When the Witness Is No Better Suited Than the Jury to Assess the Issue; (3) Appeals: No Appeal from Denial of Motion for Judgment As a Matter of Law Unless Appellant Made That Motion Before Case Was Submitted to Jury

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice