United States v. James ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA )
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v. ) Criminal Case No. 17-184 (RJL)
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ALLAN JAMES, )
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Defendant. )
-h.,
MEMORANDUM OPINION
(June / ?, 2019)
Defendant Allan James ("James") pleaded guilty m this case to one count of
unlawfully possessing a firearm and ammunition after being convicted of a crime
punishable by imprisonment for a term exceeding one year. See 18 U.S.C. § 922(g)(l ).
He currently awaits sentencing and has objected to the Sentencing Guidelines range
calculation that appears in his Presentence Investigation Report ("PSR"). The calculation
in the PSR is based, in part, on conduct that was not alleged in James's indictment and that
is evidenced only by social media posts and testimony about social media posts. See PSR
,i,i 1Oa-1 Og [Dkt. # 18]. Indeed, James' s Guidelines range quadrupled as a result of its
inclusion. James argues that this social media evidence is not sufficiently reliable to be
used as a basis for enhancing his Sentencing Guidelines range. I agree, and his objection ·
will therefore be SUSTAINED.
BACKGROUND
The United States ("the Government") indict.ed James in October 2017 for a single
count of violating 18 U.S.C. § 922(g)(l). See Indictment at 1 [Dkt. # 5]. The one-count
indictment refers in turn to a single firearm-a Glock 22 .40 caliber pistol-and alleges
that James possessed the gun, along with some .40 caliber ammunition, on or about July
12, 2017. See id. James, as is his right, pleaded guilty to the conduct charged in the
indictment without first negotiating a plea deal with the Government. His Sentencing
Guidelines range, if calculated based on the conduct described in the indictment, provides
for twenty-one to twenty-seven months of incarceration. See Draft PSR ii 6-10, 7 5 n.4
[Dkt. # 17]. That Guidelines range was reflected in the draft PSR prepared by the United
States Probation Office ("Probation"). See id.
After reviewing the draft PSR, the Government argued that James' s Guidelines
range should be significantly enhanced as a result of certain social media posts, most of
which were recovered by executing search warrants for Facebook and Snapchat accounts.
In particular, the Government contended that James' s base offense level should be
increased from fourteen to twenty because these social media posts involved a
semiautomatic firearm capable of accepting a large capacity magazme, see U.S.S.G.
§ 2K2.l(a)(4)(B); that James should be given an additional four-point enhancement
because the posts linked him to at least eight firearms, 1 see U.S.S.G. § 2K2.1 (b )( 1)(B); and
finally that James should be given another four~point enhancement because he trafficked
1
Alternatively, the Government contends that the social media evidence links James to between three and
seven firearms, which would warrant a two-point enhanc-ement to his offense level. See U.S.S.G.
§ 2K2.l (b )(1 )(A).
2
firearms, see U.S.S.G. § 2k2.l(b)(5). According to the Government, images, videos, and
messages posted to the social media accounts between January 2016 and June 2017 show
James in possession of and, in some cases, trying to sell firearms. Ultimately, Probation
adopted the Government's position in its final PSR, increasing James's Guidelines range
to eighty-four to one hundred and five months of incarceration. See PSR i1 7 5.
James, of course, strongly objects to this fourfold increase in his Guidelines range.
The parties have filed memoranda setting forth their positions on the correct Guidelines
range calculation, and the Government has been given multiple opportunities to identify
all evidence that supports the calculation in the final PSR. 2 James's objection is now ripe
for resolution. 3
ANALYSIS·
Courts are naturally wary when prosecutors seek substantial sentencing
enhancements based on conduct the same prosecutors declined to charge. Indeed, judges
have "note[ d] ... continuing disagreement with the government's practice of charging
relatively minor crimes, while using ... 'relevant [uncharged] conduct' ... to argue for
2
To resolve James's objection, the Cowi has considered the PSR, the Government's Memorandum in Aid
of Sentencing ("Gov't Sentencing Mem.") [Dkt. # 22], James's Memorandum in Aid of Sentencing [Dkt.
# 23], the Government's Notice of Change in Position [Dkt. # 25], the Government's Status Repo1i on
Potential Expeti Witness [Dkt. # 29], the parties' Joint Status Repoti as to Sentencing [Dkt. # 30], the
Government's Supplemental Guidelines Calculation [Dkt. # 33], James's Response to the Government's
Sentencing Supplement [0kt. # 34], the Government's Supplemental Memorandum in Aid of Sentencing
("Gov't Suppl. Sentencing Mem.") [Dkt. # 38], James's second Response to the Government's Sentencing
Supplement [Dkt. # 40], and oral argumenffrom the pa1iies at hearings held on July 6, 2018, February 25,
2019, and March 18, 2019.
3
Given the argument, briefing, affidavits, and expeti repo1is before the Couti, it is not necessary to hold an
evidentiary hearing to resolve James's objection. See U.S.S.G. § 6A 1.3, cmt. ("Written statements of
counsel or affidavits of witnesses may be adequate [to resolve disputes about sentencing factors] under
many circumstances.").
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significantly enhanced terms of imprisonment." United States v. Magee, 834 F.3d 30, 38
(1st Cir. 2016) (Torruella, J., concurring)(quoting U.S.S.G. § 1Bl.3(a)); see United States
I .
v. Scheiblich, 346 F. Supp. 3d 1076, 1082-85 (S.D. Ohio 2018) (citing cases in which
judges express skepticism about this practice). One Court of Appeals 'has even gone so far
as to expressly and repeatedly "rernind prosecutors -·not to indict defendants on relatively
minor offenses and then seek enhancement sentences later by asserting that the defendant
has committed other mor~ serious crimes for which, for whatever reason, the defendant
was not prosecuted and has not been convicted. "' 4 United States v. Spiller, 261 F .3 d 683,
691 (7th Cir. 2001) (quoting United States v. Bacallao, 149 F.3d 717, 721 (7th Cir. 1998)).
This judicial skepticism is, of course, rooted in the defendant's constitutionally
protected rights. After all, by asking "judges to rely on acquitted or uncharged conduct to
impose higher sentences than they otherwise would impose," prosecutors adopt a strategy
that "seems a dubious infringement of the rights to due process and to a jury trial." United
.
States v. Bell, 808 F.3d 926,928 (D.C. Cir. 2015) (Kavanaugh, J., concurring with denial
of petition for rehearing en bane). To say the least, "trial by sentencing enhancements"
was not what_ Congress had in mind when it blessed the federal Sentencing Guidelines
regime!
But concerns about this practice extend beyond outright violations of the
Constitution. "Many judges and commentators" who have questioned prosecutors' zeal to
punish defendants for conduct that has never resulted in a conviction argue that the use of
4
See also United States v. Jordan, 221 F.3d 1339 (table), 2000 WL 874960, at *3 n.4 (7th Cir. 2000);
United States v. Fischer, 905 F.2d 140, 142 (7th Cir. 1990).
4
uncharged or "acquitted conduct to increase a defendant's sentence undermines respect for
the law and the jury system." United States v. Settles, 530 F.3d 920, 924 (D;C. Cir. 2008).
Our Circuit Court has specifically acknowledged that it "understand[ s] why defendants
find it unfair for district courts to rely on" such conduct at sentencing-even while
reiterating that "long-standing precedents of the Supreme Court and [the Circuit] Court"
often allow it. 5 Id. at 923. And so it seems obvious, as pointed out by Judge, now Justice,
Kavanaugh, that "district judges would" be wise "to heed ... concern[s ]" about unfairness
and, "in appropriate cases," to "avoid basing any part of [a defendant's] ultimate sentence
on acquitted or uncharged conduct." Bell, 808 F.3d at 928 (Kavanaugh, J., concurring with
denial of petition for rehearing en bane); see also id. ("[F]ederal district judges have power
in individual cases to disclaim reliance on acquitted or uncharged conduct" by "vary[ing]
the sentence downward to avoid basing any part of the ultimate sentence on acquitted or
uncharged conduct."); Settles, 530 F.3d at 924 ("[E]ven though district judges are not
required to discount acquitted conduct, the Booker-Rita-Kilnbrough-Gall line of cases may
allow district judges to discount acquitted conduct in particular cases .... " ( citing
Kimbrough v. United States, 552 U.S. 85, 101 (2007)) (emphasis in original)).
Moreover, the Government's requested sentence in this particular case deserves
considerable scrutiny because its use of uncharged conduct is compounded by the
5
Facts, other than the fact of a prior conviction, that increase a statutorily imposed maximum penalty or
mandatory minimum penalty must be proven beyond a reasonable doubt to a jury. See Alleyne v. United
States, 570 U.S. 99, 103 (2013); Apprendi 1i. New Jersey, 530 U.S. 466, 490 (2000). But so long as conduct
does not alter the statutorily mandated sentencing range and the "conduct has been proved by a
preponderance of the evidence," a sentencing cou1i "may co11sider uncharged or even acquitted conduct in
calculating an appropriate sentence." Settles, 530 F.3d at923.
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weakness of the evidence it offers to prove the conduct. To say the least, social media
posts-.with little else-can hardly justify the quadrupling of a defendant's Guidelines
range. How so?
Courts, and commentators, have explained why determining the accuracy of
information posted to social media is far from straightforward and hence of questionable
reliability. Facebook records, for example, are "no more sufficient to confirm the accuracy
or reliability of' information posted to the website "than a postal receipt would be to attest
to the accuracy or reliability of the contents of the enclosed mailed letter." United States
v. Browne, 834 F.3d 403, 411 (3d Cir. 2016). Indeed, Facebook can actually make
photographic evidence less useful because it "'strips ... metadata as the photograph is
uploaded' ... rendering [its] date of creation unknown." United States v. Farrad, 895 F.3d
859, 867 (6th Cir. 2018) (quoting testimony from a police officer trained in social media
investigations). Snapchat is similarly problematic as some of its "key function[ s]" give
users the ability to edit images before sharing them. Agnieszka McPeak, Disappearing
Data, 2018 Wrs. L. REV. 17, 34 (2018) ("A key function within Snapchat is the use of
Filters, which allows users to add multiple overlays to their images. Lenses also allow
'real-time special effects and sounds' to be added to images." (footnote omitted)). Even
determining who posted a particular message, imag~, or video to Facebook or Snapchat is
difficult "because of the great ease with which a social media account may be falsified or
a legitimate account may be accessed by an imposter." Browne, 834 F .3d at 412. For these
reasons, courts usually "consider[] . . . extrinsic evidence to determine whether the
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government [can meet] its authentication burden" before permitting the introduction of
social media evidence against a defendant at trial. Id. at 413.
Not surprisingly, the reliability standard applicable at sentencings, see U.S.S.G.
§ 6Al.3(a), 6 counsels in favor of requiring extrinsic corroboration before social media
evidence is used to resolve a dispute relevant to a sentencing determination. Because social
media posts may contain false information and doctored images, and because posters may
be using hacked accounts or stolen identities, uncorroborated social media posts will not
often establish, with any degree of reliability, that the information in the posts is accurate
or that the posts are what they purport to be.
The Government here has not offered sufficient extrinsic corroboration to establish
the necessary reliability of its social media evidence. While it has pointed to reasons to
believe James had access to the Facebook and Snapchat accounts from which it collected
evidence, see Declaration of Special Agent Robert Mayo ("Mayo Deel.") at 22 [Dkt. # 3 8-
1] (reporting that photos found on James' s cell phone had been uploaded to the social media
accounts), account access, alone, cannot possibly justify the sentence enhancements the
Government requests here due to the myriad of facts the Government would need to
establish in order to render these photos sufficiently reliable.
For example, the Government would need to establish that the alleged firearms
depicted in the social media pictures and videos are actual firearms. See 18 U.S.C.
§ 92l(a)(3); U.S.S.G. § 2K2.1 cmt. n.l (defining "[f]irearm" to "ha[ve] the meaning given
6
At sentencing, "information [must] ha[ve] sufficient indicia ofreliability to suppot1 its probable accuracy,"
if it is to be used to resolve a dispute between the pa11ies. In re Sealed Case, 246 F.3d 696, 699- 700 (D.C.
Cir. 2001) (quoting U.S.S.G. § 6Al.3).
7
that term in 18 U.S.C. § 92l(a)(3)"). However, assuming those photos and videos have
not been doctored, the Government's own firearms expert here concedes, "it is not possible
to determine if an object depicted in a photograph or video is a functional firearm, a replica
firearm, or a toy firearm." Mayo Deel. App. A, Laboratory Report of Bryce A. Ziegler
("Ziegler Report") at 4.
In addition, the Government would need to establish that the pictures and videos
posted to social media were created around the same time they were uploaded to
substantiate its argument that the social media evidence depicts a single, year-and-a-half-
long course of conduct or common scheme. See Gov't Sentencing Mem. at 24 (arguing
that the social media evidence depicts a single course of conduct or common scheme
because James allegedly "possessed between eight and 24 firearms over [a] year-and-a-
half period"); United States v. Mahone, 688 F .3d 907, 909 (8th Cir. 2012) ("At least four
of our sister circuits have concluded that a defendant's pattern of unlawfully possessing
multiple firearms over the course of several months constitutes 'the same course of
conduct' for relevant conduct purposes." ( emphasis added)). But when the Government
seized and searched James' s cell phone, these allegedly inculpatory pictures and videos
could not be found, see Mayo Deel. at 22-23, and, to date, none appear to have been
analyzed for a date of creation. To say the least, the Government's theory that James
possessed multiple weapons over a year-and-a-half period falls apart if its social media
evidence consists of pictures and videos that were years old when uploaded. See Farrad,
895 F.3d at 867, 872 (explaining why evidence from Facebook cannot establish the date a
photograph was taken).
8
Moreover,· the Government would also need to establish that James actually
possessed the weapons depicted in the images and videos. This is especially so when you
consider that several of these social media posts depict only apparent firearms, without
showing any individual, let alone James, present. See Mayo Deel. at 12-13. To say the
least, an image of a firearm alone does not establish that the photographer, videographer,
or person who uploaded the image to social media ever owned or possessed the depicted
firearm. See United States v. Winters, 530 F. App'x 390, 395 (5th Cir. 2013) ("A
photograph's appearance on a personal webpage does not by itself establish that the owner
of the page possessed or controlled the items pictured.").
Finally, the Government would need to establish that the images and videos that do
include James' s image have not been doctored to give the illusion that James possessed
firearms he never actually had. See United States v. Frabizio, 445 F. Supp. 2d 152, 15 8
(D. Mass. 2006) ("[T]he government has not made the threshold showing that a visual
observer can reliably evaluate the relevant pictures for signs of manipulation and computer-
generation. Rather, the evidence strongly suggests that it is extremely difficult, if not
impossible, for a photographic expert, let alone a lay observer, to determine whether the
images involved in the instant case are real images or images created or manipulated
through digital technology."), clarified on reconsideration, 463 F. Supp. 2d 111 (D. Mass.
2006). Unfortunately, the Government offers no testimony that could assist the Court in
distinguishing between images and video that have been virtually created or altered and
images and video that were recorded on a camera and never later manipulated.
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In the final analysis, the Government contends that its interpretation of the photos
and videos is bolstered by messages and captions that were posted to the same social media
accounts as the images. See, e.g., Gov't Sentencing Mem. at 28 ("The defendant received
at least the MAC-I 0-style gun, the AR-15-style rifle, and the distinctive white pistol in the
'Back on Dat Action' video with the intent to sell them to other people, as evidenced by
his Facebook discussion of pricing."). But introducing statements posted to social media
requires still more antecedent proof: The Government must establish that James authored
the statements being attributed to him. Doing so here is difficult because the Government
did not thoroughly investigate whether any individuals other than James had access to
James' s cell phone or social media accounts. See Status Hr' g Tr. at 13: 10-15 :7 (Mar. 18,
2019) [Dkt. # 36]; Gov't Suppl. Sentencing Mem. at 2 n.2.
At bottom, the social media posts that the Government counts as evidence of
James' s "possession of the eleven firearms," with intent to traffic three, as "part of ... a
common scheme or plan," Gov't Sentencing Mem. at 24, 28, are just as consistent with the
possibility that a person with access to James' s social media accounts wanted viewers to
incorrectly think James had and could sell 7 firearms. Within the world of social media, the
latter possibility is no less conceivable than the former. See Farrad, 895 F .3d at 874
("[P]eople advertise false images of themselves all the time-putting signs on their doors
suggesting that they have a fancy. alarm system, a fierce guard dog, or a high-powered
firearm that they do not in fact have. The Facebook poseur['s] ... incentive is not
7
None of the social media messages that the Government offers as evidence of James's intent to traffic
firearms suggest that James ever finalized an agreement to sell any firearm. See Gov't Sentencing Mem.
at 9, 12. Nor does the Govei'nment contend that any sale was consummated. See id. at 28.
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necessarily to show a real gun, which is costlier, harder to procure, and, needless to say,
more·likely to subject its owner to criminal liability."). This potential for digital deception
is precisely why courts require extrinsic corroboration before crediting social 1nedia
evidence. See United States v. Vayner, 769 F.3d 125, 132-33 (2d Cir. 2014} (holding that
a printout from a social media profile should not have been admitted at trial when "the
information contained on the [profile] allegedly tying [it] to [the defendant] was also
known by ... others, some of whom may have had reasons to create a profile page falsely
attributed to the defendant" and the profile was not otherwise corroborated). And
persuasive, extrinsic corroboration is what the Government lacks here. Only one firearm
was ever found on James or at his residence. 8 The other alleged firearms shown on social
media could have been stored outside of James' s residence, given away, thrown out, or
sold-or the social media posts offered by the Government could depict toys, replicas, or
digital creations.· Neither the posts themselves, nor any witness offered by the Government,
reliably establishes one or the other.
Moreover, the Government offers no legal authority that suggests its uncorroborated
social media posts are sufficiently reliable to enhance James' s sentence. The Government
merely points to three out-of-circuit, unpublished, nonprecedential opinions in which
sentencing enhancements based in part on digital images were upheld on clear error review.
See Gov't Suppl. Sentencing Mem. at 4 (citing United States v. Villanueva, 315 F. App'x
845, 848-49 (11th Cir. 2009) (per curiam); United States v. Spencer, 685 F. App'x 863,
8
The Government did recover ammunition when it executed a search warrant at James's residence. See
Mayo Deel. at 22. The recovered ammunition is the same caliber as the firearm and ammunition referred
to in James' s indictment. See Indictment at 1.
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867 (11th Cir.2017) (per curiam); United States v. Weigant, 448 F. App'x 22, 26-27 (11th
Cir. 2011) (per curiam)). Unfortunately for the Government, none of the three opinions
addresses the fundamental problem with the Government's evidence here-the lack of
offline, or otherwise reliable, corroboration. In two of the Government's cited cases, the
District Court heard testimony that the firearms depicted in the digital evidence offered at
sentencing were real. See Villanueva, 315 F.. App'x at 849; Weigant, 448 F. App'x at 27.
Here, the Government submitted a report from a firearms examiner who cannot even
determine whether the apparent firearms are real or not. See Ziegler Report at 4. The
Government's third case does not deal with social media evidence at all. In United States
v. Spencer, a District Court relied on photographs that, unlike here, were recovered from
the defendant's cell phone and that, unlike here, were sufficiently clear to identify specific
makes and manufacturers of depicted firearms. See 685 F. App'x at 867. By comparison,
the Government's expert in this case cautions, (,·Due to poor image quality or a lack of
observable physical characteristics, it may not be possible to determine a specific model or
manufacturer of a potential firearm" from the offered social media posts. Ziegler Report
at 4. Not exactly comforting that!
In short, the Government points to cases in which digital evidence was deemed
reliable after it was corroborated through testimony less equivocal than what is offered
here or through comparisons to functional firearms more detailed than are possible here.
Where prosecutors can bolster social media evidence in a way that establishes "sufficient
indicia of reliability to support its probable accuracy," In re Sealed Case, 246 F .3d at 700
(quoting U.S.S.G. § 6Al .3), social media posts may well be an appropriate basis on which
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to resolve disputes at sentencing. But the Government's submiss!ons in this case make
clear that it cannot clear that hurdle. Its proposed witnesses offer little by way of extrinsic
corroboration for the social media posts allegedly establishing James 's possession and
trafficking of multiple firearms and possession of a semiautomatic firearm capable of
accepting a large capacity magazine. The Government will not, therefore, be permitted to
rely on its social media evidence at James's sentencing to modify in any way the initial
Ciuidelines calculation of the Probc1tion Office.
CONCLUSION
James's objection to the use of the Government ' s social media evidence in
calculating his Sentencing Guidelines range will be SUSTAINED. The sentencing hearing
in this case remains set for June 18, 2019 , and the applicable Guidelines range will be
twenty-one to twenty-seven months of imprisonrnent.
~QJI .. _/
RICHARDJ. ~
United States District Judge
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