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.
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.
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.
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.
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).
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.
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.
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
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.
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,
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
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).