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Facebook Posts and Text Messages Support Conviction (Monday, January 16, 2017)

David Lewisbey was a Chicago-based gunrunner who used a fake Indiana I.D. to buy guns at Indiana gun shows. He then brought the guns back to Illinois to sell. He attracted the attention of law enforcement when he bragged about his gunrunning exploits on Facebook.
 
After Lewisbey sold a total of 43 guns to a confidential informant in five separate controlled purchases, law enforcement moved in and arrested him. Lewisbey was charged with multiple counts of unlawfully transporting and dealing firearms. A jury convicted him on all counts.
 
Lewisbey’s defense at trial was that he was merely a gun collector. The prosecution’s case included video recordings of Lewisbey’s sales to the confidential informant, text messages showing that Lewisbey habitually sold guns to purchasers other than the confidential informant, and Facebook photos depicting Lewisbey with lots of guns and large sums of money.
 
Over Lewisbey’s objection the judge allowed the government to introduce certain inculpatory text messages from Lewisbey’s phones and posts from his Facebook page. On appeal, Lewisbey argued that the Facebook posts and the text messages taken from two phones—a Samsung and an iPhone—should have been excluded on both hearsay and authentication grounds. He also argued that the prejudicial impact of this evidence substantially outweighed its limited probative value and thus the evidence should have been excluded under Rule 403 of the Federal Rules of Evidence.
 
Accordingly to the appeals court, the hearsay objection was a nonstarter. The text messages Lewisbey sent were his own statements and as such are excluded from the definition of hearsay by Rule 801(d)(2)(A). The messages he received were admitted not for the truth of the matter asserted but instead to provide context for Lewisbey’s own messages. Lewisbey admitted that the Facebook posts were his, so like his “sent” text messages, the posts qualified as non-hearsay admissions under Rule 801(d)(2).
 
The authentication objection fared no better. To authenticate the text messages, the government needed only to “produce evidence sufficient to support a finding” that the messages were actually sent and received by Lewisbey. Fed. R. Evid. 901(a). The iPhone was confiscated from Lewisbey at the time of his arrest, and in a recorded phone call from the jail, he told his mother that the police took his phone. The Samsung device was recovered from his bedroom at his parents’ home, a room that both parents identified as belonging exclusively to him. The “Properties” section of the iPhone described the phone as “Big Dave’s,” and the contacts directory included information for Lewisbey’s mother listed under the heading “Mom,” and also the name and number of his former attorney. Both phones listed contact information for the Texas Home Depot stores where Lewisbey used to work. The confidential informant arranged gun sales with Lewisbey on the Samsung phone. The court concluded that this was “more than enough” to establish that the two phones were Lewisbey’s. Fed. R. Evid. 901(b)(4).
 
Lewisbey’s admission that the Facebook posts were his was enough for authentication, but if more were needed, the Facebook page listed Lewisbey’s nickname, his date of birth, and his place of residence (Houston) where he lived prior to Illinois. The email addresses associated with the Facebook account corresponded to both the email linked with Lewisbey’s iPhone and his former email address at the University of Kansas. The Facebook page contained more than 100 photos of Lewisbey—including a profile picture—and many of the Facebook photos matched photos also found on Lewisbey’s iPhone. The Facebook application on Lewisbey’s iPhone was linked to this Facebook account. Messages on the account discussed Lewisbey’s trips to gun shows in Fort Wayne and Indianapolis on dates when gun shows actually occurred at these locations.
 
Lewisbey argued that the text messages and Facebook posts should have been excluded under Rule 403 because they were merely cumulative. The court of appeals found this argument frivolous. The text messages and Facebook posts were corroborative, not cumulative. Lewisbey’s defense at trial was that he was just a gun collector. The text messages and Facebook posts were admitted to rebut this defense by corroborating the witnesses who testified about Lewisbey’s gunrunning activities. The evidence was neither needlessly cumulative nor unfairly prejudicial and was properly admitted.
 
Finally, Lewisbey challenged the judge’s decision to allow Special Agent Joseph Raschke to testify about Lewisbey’s phone records. Agent Raschke explained that Lewisbey’s phone records showed calls made at places and times that corresponded to the testimony of the other prosecution witnesses.
 
The record reflected that the judge conducted a thorough Daubert analysis of Agent Raschke’s proposed testimony and soundly exercised his discretion to admit it. Using call records and cell towers to determine the general location of a phone at specific times is a well-accepted, reliable methodology.
 
With 350 hours of training in the systems used by the relevant network service providers, Agent Raschke had ample expertise in this methodology. The judge also appropriately recognized the limits of this technique by barring the agent from couching his testimony in terms that would suggest that he could pinpoint the exact location of Lewisbey’s phones. The appeals court found no abuse of discretion.
 
There are a couple of takeaways. First, there is no shortage of dumb criminals. Second, text messages and social media postings can be powerful evidence, and establishing admissibility should not be a difficult burden. The case is United States of America v. David Lewisbey, 843 F.3d 653 (7th Cir. 2016).

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