United States v. Tony Browne

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-1798
_____________
UNITED STATES OF AMERICA
v.
TONY JEFFERSON BROWNE,
Appellant
_____________
On Appeal from the District Court
of the Virgin Islands
(D.C. No. 3-13-cr-00037-001)
District Judge: Curtis V. Gomez
_______________
Argued December 10, 2015
BEFORE: FISHER, KRAUSE, and ROTH, Circuit Judges
(Filed: August 25, 2016)
_______________
Everard E. Potter, Esq. [ARGUED]
Ronald Sharpe, Esq.
Office of United States Attorney
5500 Veterans Building, Suite 260
United States Courthouse
St. Thomas, VI 00802
Counsel for Appellee
Omodare Jupiter, Esq. [ARGUED]
Office of Federal Public Defender
1115 Strand Street
Suite 201
Christiansted, VI 00820
Counsel for Appellant
______________
OPINION OF THE COURT
______________
Krause, Circuit Judge.
The advent of social media has presented the courts
with new challenges in the prosecution of criminal offenses,
including in the way data is authenticated under the Federal
Rules of Evidence—a prerequisite to admissibility at trial.
Appellant Tony Jefferson Browne was convicted of child
pornography and sexual offenses with minors based in part on
records of “chats” exchanged over Facebook and now
contests his conviction on the ground that these records were
not properly authenticated with evidence of his authorship.
Although we disagree with the Government’s assertion that,
2
pursuant to Rule 902(11), the contents of these
communications were “self-authenticating” as business
records accompanied by a certificate from the website’s
records custodian, we will nonetheless affirm because the trial
record reflects more than sufficient extrinsic evidence to link
Browne to the chats and thereby satisfy the Government’s
authentication burden under a conventional Rule 901
analysis.
I. Background
A. Facts
Facebook is a social networking website that requires
users to provide a name and email address to establish an
account. Account holders can, among other things, add other
users to their “friends” list and communicate with them
through Facebook chats, or messages.
Under the Facebook account name “Billy Button,”
Browne began exchanging messages with 18-year-old Nicole
Dalmida in November 2011. They met in person a few
months later and then exchanged sexually explicit
photographs of themselves through Facebook chats. Browne
then threatened to publish Dalmida’s photos online unless
Dalmida engaged in oral sex and promised to delete the
photos only if she provided him the password to her
Facebook account.
Using Dalmida’s account, Browne made contact with
four of Dalmida’s “Facebook friends,” all minors—T.P. (12
years old), A.M. (15 years old), J.B. (15 years old) and J.S.
(17 years old)—and solicited explicit photos from them by a
variety of means. Once he had the minors’ photos, he
3
repeated the pattern he had established with Dalmida,
threatening all of them with the public exposure of their
images unless they agreed to engage in various sexual acts
and sent additional explicit photos of themselves to his Button
Facebook account or to his phone number (“the 998
number”). He arranged to meet with three of the minors and
sexually assaulted one.
On receiving information from the Virgin Islands
Police Department, agents from the Department of Homeland
Security (DHS) interviewed Dalmida and three of the minors.
In June 2013, DHS arrested Browne and executed a search
warrant on his residence. Among the items seized was a cell
phone that matched the 998 number and from which text
messages and photos of the minors were recovered. During
questioning and at trial, Browne admitted the 998 number and
phone belonged to him. DHS executed a search warrant on
the Button Facebook account, which Browne also admitted
belonged to him, and Facebook provided five sets of chats
and a certificate of authenticity executed by its records
custodian.
B. Proceedings
At trial, over defense counsel’s objections, the District
Court admitted the five Facebook chat logs and certificate of
authenticity into evidence. Four of the chats involved
communications between the Billy Button account and,
respectively, Dalmida, J.B., J.S. and T.P. 1 The fifth chat did
1
The Government did not seek to admit into evidence
any Facebook messages sent from the Button account to the
remaining minor victim, A.M., but photos of A.M. were
4
not involve Button’s account and took place between
Dalmida and J.B., on the subject of Browne’s sexual assault
of J.B. The certificate stated, in accordance with Rule
902(11) of the Federal Rules of Evidence, that the records
that Facebook had produced for the named accounts met the
business records requirements of Rule 803(6)(A)–(C).
Tracking the language of Rule 803(6), the custodian certified
that the records “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.” App. 403; see Fed. R. Evid. 803(6).
Relevant to this appeal, seven witnesses testified for
the Government: Dalmida and the four minors, and two
Special Agents from DHS. Dalmida and the four minors
provided extensive testimony about their communications
with Button. According to that testimony, using Dalmida’s
Facebook account, Browne sent explicit photos of Dalmida to
T.P. and A.M. and requested photos in return, and using his
own Facebook account, he contacted J.S. and offered to pay
her for sexually explicit photos of herself. The testimony and
chat logs also established that Browne used Dalmida’s
account to instruct J.B. to add him as a friend on Facebook,
after which he used his own account to send her explicit
photos of himself and asked her to do the same.
All four minors testified that after receiving requests
for explicit photos, they complied by sending Facebook
messages to the Button account or by texting images to the
among those recovered from the phone seized from Browne’s
home and admitted into evidence.
5
998 number, and that they subsequently received threats that
their photos would be published online if they did not comply
with the sender’s sexual demands. And on the stand,
Dalmida and each of the four minors identified various
Government exhibits as photos they took of themselves and
sent to the Button account or the 998 number.
Dalmida and three of the minors (all but T.P.) also
testified to meeting Browne in person and identified Browne
in open court as the man they had met after making meeting
arrangements through messages to the Button account or the
998 number. Two of the minors who met Browne in person
testified that they were forced to do more than send additional
explicit photographs. A.M. explained that after receiving
instructions to text her photos to the 998 number, she received
messages from the Button account demanding sexual
intercourse and threatening her with the exposure of her
images if she refused. After sending her the images,
presumably to prove they were in his possession, the
individual using the 998 number repeated his threat and
instructed her to “play with [her]self” on a video chat site so
he could watch. Fearful he would follow through on his
threat, she complied. Another minor, J.B., testified that after
she arranged to meet Browne through the Button account,
Browne sexually assaulted her and recorded the encounter.
She also confirmed that she exchanged Facebook messages
with Dalmida describing the incident shortly after it occurred.
Special Agents Blyden and Carter testified to details of
Browne’s arrest and the forensics examination of the items
seized from Browne’s residence. Special Agent Blyden
recounted Browne’s post-arrest statements that he knew and
had exchanged “nude photos” with Dalmida, that he admitted
to knowing three of the minors (all but A.M.), and that he had
6
paid minor J.S. for nude photos of herself. Special Agent
Blyden also identified the Facebook chat conversations as
records she had received from Facebook and testified that
Facebook had provided the accompanying certificate. Special
Agent Carter, the forensics agent, testified to the items
recovered from Browne’s home, including the phone
associated with the 998 number, and identified sexually
explicit photos of Dalmida and three of the minors (all but
J.B.) as images that were recovered from the phone.2
The defense put only Browne on the stand. Browne
testified that his Facebook name was Billy Button, and that he
knew Dalmida and minors J.S. and J.B. and had corresponded
with them on Facebook. He denied knowing or
communicating with minor T.P., contradicting Special Agent
Blyden’s testimony that he had admitted to this after his
arrest, and did not state whether he knew A.M. Browne also
denied sending any photos to the victims or requesting photos
from them. As to the incriminating data discovered on the
phone with the 998 number, he testified that he loaned the
phone to Dalmida in December of 2012 and intermittently
between January and March 2013, and that he also loaned the
phone to a cousin at an unspecified time.3 At one point
2
At trial, however, J.B. identified several Government
exhibits as photos she had sent to Button’s Facebook account
or the 998 number.
3
Dalmida testified that she never had Browne’s phone
in her possession, and Special Agent Blyden testified that
during the investigation Dalmida denied ever receiving a
phone from Browne.
7
during his testimony, he confirmed he owned a second phone
and number (“the 344 number”).
Browne was convicted by a jury after a two-day trial.4
He now appeals his conviction on the ground that the
Facebook records were not properly authenticated and should
not have been admitted into evidence.
II. Jurisdiction
4
The jury convicted Browne on twelve counts,
including the production of child pornography in violation of
18 U.S.C. § 2251(a) (Counts 1–4); the coercion and
enticement of a minor to engage in sexual activity in violation
of 18 U.S.C. § 2422(b) (Count 8); the receipt of child
pornography in violation of 18 U.S.C. § 2252(a)(2) (Counts
9–12); and the transfer of obscene material to minors under
age 16, in violation of 18 U.S.C. § 1470 (Count 17, 19–20).
The jury acquitted Browne on three counts for coercion and
enticement, in violation of 18 U.S.C. § 2422(b) (Counts 5–7),
and on the count of aggravated first degree rape in violation
of 14 V.I.C. § 1700(c) (Count 22). Before the jury rendered
its verdict, the defense successfully moved to dismiss a
charge of extortion using interstate commerce, in violation of
18 U.S.C. 875(d) (Count 21), and the Government
successfully moved to dismiss one of the counts for the
transfer of obscene material to minors under age 16 (Count
18) and all charges for possession of child pornography under
18 U.S.C. 2252(a)(4)(B) (Counts 13–16) in light of the fact
that possessing child pornography is a lesser-included offense
of the receipt of child pornography, United States v. Miller,
527 F.3d 54, 71–72 (3d Cir. 2008).
8
The District Court had jurisdiction under 18 U.S.C.
§ 3231 and 48 U.S.C. § 1612(c), and we have jurisdiction
under 28 U.S.C. § 1291. We review the District Court’s
decision regarding the authentication of evidence for abuse of
discretion, United States v. Turner, 718 F.3d 226, 232 (3d
Cir. 2013), and exercise plenary review over its interpretation
of the Federal Rules of Evidence, United States v. Console,
13 F.3d 641, 656 (3d Cir. 1993).
III. Discussion
Browne argues that the Facebook records were not
properly authenticated because the Government failed to
establish that he was the person who authored the
communications. More specifically, Browne contends that no
witness identified the Facebook chat logs on the stand;
nothing in the contents of the messages was uniquely known
to Browne; and Browne was not the only individual with
access to the Button account or the 998 number. The
Government, for its part, argues the Facebook records are
business records that were properly authenticated pursuant to
Rule 902(11) of the Federal Rules of Evidence by way of a
certificate from Facebook’s records custodian.
The proper authentication of social media records is an
issue of first impression in this Court. In view of Browne’s
challenge to the authentication and admissibility of the chat
logs, our analysis proceeds in three steps. First, as with non-
digital records, we assess whether the communications at
issue are, in their entirety, business records that may be “self-
authenticated” by way of a certificate from a records
custodian under Rule 902(11) of the Federal Rules of
Evidence. Second, because we conclude that they are not, we
consider whether the Government nonetheless provided
9
sufficient extrinsic evidence to authenticate the records under
a traditional Rule 901 analysis. And, finally, we address
whether the chat logs, although properly authenticated, should
have been excluded as inadmissible hearsay, as well as
whether their admission was harmless.
A. Self-authentication
To satisfy the requirement under Rule 901(a) of the
Federal Rules of Evidence that all evidence be authenticated
or identified prior to admission, the proponent of the evidence
must offer “evidence sufficient to support a finding that the
item is what the proponent claims it is.” Rule 901(b), in turn,
sets forth a non-exhaustive list of appropriate methods of
authentication, including not only “[t]estimony that an item is
what it is claimed to be,” Fed. R. Evid. 901(b)(1), but also
“appearance, contents, substance, internal patterns, or other
distinctive characteristics of the item, taken together with all
the circumstances,” Fed. R. Evid. 901(b)(4), and “[e]vidence
describing a process or system and showing that it produces
an accurate result,” Fed. R. Evid. 901(b)(9).
The central dispute in this case is complicated,
however, by the Government’s contention that it
authenticated the Facebook chat logs by way of Rule 902,
under which extrinsic evidence is not required for certain
documents that bear sufficient indicia of reliability as to be
“self-authenticating.” Specifically, the Government relies on
Rule 902(11), which provides that “records of a regularly
conducted activity” that fall into the hearsay exception under
Rule 803(6)—more commonly known as the “business
records exception”—may be authenticated by way of a
certificate from the records custodian, as long as the
proponent of the evidence gives the adverse party reasonable
10
notice and makes the record and certificate available for
inspection in advance of trial. Fed. R. Evid. 902(11).5
The viability of the Government’s position turns on
whether Facebook chat logs are the kinds of documents that
are properly understood as records of a regularly conducted
activity under Rule 803(6), such that they qualify for self-
authentication under Rule 902(11). We conclude that they
5
Rule 803(6) allows for the admission of “[a] record
of an act, event, condition, opinion, or diagnosis” containing
hearsay if: “(A) the record was made at or near the time by—
or from information transmitted by—someone with
knowledge; (B) the record was kept in the course of a
regularly conducted activity of a business, organization,
occupation, or calling, whether or not for profit; (C) making
the record was a regular practice of that activity; (D) all these
conditions are shown by the testimony of the custodian or
another qualified witness, or by a certification that complies
with Rule 902(11) or (12) or with a statute permitting
certification; and (E) the opponent does not show that the
source of information or the method or circumstances of
preparation indicate a lack of trustworthiness.” Fed. R. Evid.
803(6). Rule 902(11), in turn, was adopted by amendment in
2000 to allow records of regularly conducted activity to be
authenticated by certificate rather than by live testimony and
provides that the proponent of a business record who meets
certain notice requirements need not provide extrinsic
evidence of authentication if the record meets the
requirements of Rule 803(6)(A) through (C) “as shown by a
certification of the custodian or another qualified person,”
Fed. R. Evid. 902(11); see Fed. R. Evid. 902 advisory
committee’s note (2000).
11
are not, and that any argument to the contrary misconceives
the relationship between authentication and relevance, as well
as the purpose of the business records exception to the
hearsay rule.
First, to be admissible, evidence must be relevant,
which means “its existence simply has some ‘tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.’” United States v.
Jones, 566 F.3d 353, 364 (3d Cir. 2009) (quoting Fed. R.
Evid. 401). Because evidence can have this tendency only if
it is what the proponent claims it is, i.e., if it is authentic,
United States v. Rawlins, 606 F.3d 73, 82 (3d Cir. 2010),
“Rule 901(a) treats preliminary questions of authentication
and identification as matters of conditional relevance
according to the standards of Rule 104(b),” United States v.
Reilly, 33 F.3d 1396, 1404 (3d Cir. 1994) (quoting Jack B.
Weinstein & Margaret A. Berger, 5 Weinstein’s Evidence
¶ 901(a)[01] at 901–15 (1993)).6 Rule 104(b), in turn,
provides that “[w]hen the relevance of evidence depends on
whether a fact exists, proof must be introduced sufficient to
support a finding that the fact does exist.” Fed. R. Evid.
6
Put differently, “[a]uthenticity is elemental to
relevance.” Rawlins, 606 F.3d at 82; see Fed. R. Evid. 901(a)
advisory committee’s note (1972) (“This requirement of
showing authenticity or identity [under Rule 901(a)] falls in
the category of relevancy dependent upon fulfillment of a
condition of fact and is governed by the procedure set forth in
Rule 104(b).”).
12
104(b). We have determined that to meet the Rule 104(b)
standard of sufficiency, the proponent of the evidence must
show that “the jury could reasonably find th[ose] facts . . . by
a preponderance of the evidence.” United States v. Bergrin,
682 F.3d 261, 278 (3d Cir. 2012) (quoting Huddleston v.
United States, 485 U.S. 681, 690 (1998)) (alterations in
original); see also United States v. Khorozian, 333 F.3d 498,
506 (3d Cir. 2003) (“Authentication does not conclusively
establish the genuineness of an item; it is a foundation that a
jury may reject.”).
Here, the relevance of the Facebook records hinges on
the fact of authorship. To authenticate the messages, the
Government was therefore required to introduce enough
evidence such that the jury could reasonably find, by a
preponderance of the evidence, that Browne and the victims
authored the Facebook messages at issue. The records
custodian here, however, attested only that the
communications took place as alleged between the named
Facebook accounts. Thus, accepting the Government’s
contention that it fulfilled its authentication obligation simply
by submitting such an attestation would amount to holding
that social media evidence need not be subjected to a
“relevance” assessment prior to admission. Our sister
Circuits have rejected this proposition in both the digital and
non-digital contexts, as do we. See United States v. Vayner,
769 F.3d 125, 132 (2d Cir. 2014) (holding that a social media
profile page was not properly authenticated where the
government offered evidence only that the webpage existed
and not that it belonged to the defendant); United States v.
Southard, 700 F.2d 1, 23 (1st Cir. 1983) (observing that self-
authentication “does not eliminate the requirement of
relevancy” and requiring testimony linking the codefendant,
13
who had a common name, to the driver’s license and work
permit issued under that name).
The Government’s theory of self-authentication also
fails for a second reason: it is predicated on a
misunderstanding of the business records exception itself.
Rule 803(6) is designed to capture records that are likely
accurate and reliable in content, as demonstrated by the
trustworthiness of the underlying sources of information and
the process by which and purposes for which that information
is recorded.7 See E. C. Ernst, Inc. v. Koppers Co., 626 F.2d
324, 330–31 (3d Cir. 1980) (holding that pricing sheets
satisfied Rule 803(6) because, among other things, “the sheets
were checked for accuracy”); see also United States v. Gurr,
471 F.3d 144, 152 (D.C. Cir. 2006) (“Because the regularity
of making the record is evidence of its accuracy, statements
by ‘outsiders’ are not admissible for their truth under Fed. R.
Evid. 803(6).”); Fed. R. Evid. 803 advisory committee’s note
(1972) (“The element of unusual reliability of business
records is said variously to be supplied by systematic
checking, by regularity and continuity which produce habits
7
When we stated in United States v. Console that
“Rule 803(6) does not require that the person transmitting the
recorded information be under a business duty to provide
accurate information,” 13 F.3d 641, 657 (3d Cir. 1993), we
were observing that accuracy need not be guaranteed, but in
no way suggested that accuracy is irrelevant. On the
contrary, we went on to state: “[I]t is sufficient if it is shown
that . . . [the] standard practice was to verify the information
provided, or that the information transmitted met the
requirements of another hearsay exception.” Id. at 657–58
(citations omitted) (alterations in original) (emphasis added).
14
of precision, by actual experience of business in relying upon
them, or by a duty to make an accurate record as part of a
continuing job or occupation.”).
Here, Facebook does not purport to verify or rely on
the substantive contents of the communications in the course
of its business. At most, the records custodian employed by
the social media platform can attest to the accuracy of only
certain aspects of the communications exchanged over that
platform, that is, confirmation that the depicted
communications took place between certain Facebook
accounts, on particular dates, or at particular times. This is no
more sufficient to confirm the accuracy or reliability of the
contents of the Facebook chats than a postal receipt would be
to attest to the accuracy or reliability of the contents of the
enclosed mailed letter. See United States v. Jackson, 208
F.3d 633, 637–38 (7th Cir. 2000) (holding that Internet
Service Providers’ ability to retrieve information that their
customers posted online did not turn the posts that appeared
on the website of a white supremacist group into the ISP’s
business records under Rule 803(6)); cf. In re U.S. for
Historical Cell Site Data, 724 F.3d 600, 611 (5th Cir. 2013)
(for Fourth Amendment purposes, defining business records
as “records of transactions to which the record-keeper is a
party,” in contradistinction to “[c]ommunications content,
such as the contents of letters, phone calls, and emails, which
are not directed to a business, but simply sent via that
business”).
We have made a similar determination in the banking
context. In United States v. Furst, 886 F.2d 558 (3d Cir.
1989), we held that the district court erred in admitting bank
records as business records under Rule 803(6), even though
the records verified the dates and amounts of certain deposits
15
and receipts, because “significant” other portions of these
documents had not been independently verified, and the
records custodians lacked “knowledge as to the accuracy of
the information on which the [bank] documents was based or
as to the knowledge of the persons who prepared the records.”
Id. at 572.
If the Government here had sought to authenticate only
the timestamps on the Facebook chats, the fact that the chats
took place between particular Facebook accounts, and
similarly technical information verified by Facebook “in the
course of a regularly conducted activity,” the records might
be more readily analogized to bank records or phone records
conventionally authenticated and admitted under Rules
902(11) and 803(6). See id. at 573 (concluding that the
district court erred in admitting bank statements in the bank’s
possession under Rule 803(6) “to the extent the statements
contained any data other than confirmations of transactions”
with the bank). We need not address the tenability of this
narrow proposition here, however, as the Government’s
interest lies in establishing the admissibility of the chat logs
in full. It suffices for us to conclude that, considered in their
entirety, the Facebook records are not business records under
Rule 803(6) and thus cannot be authenticated by way of Rule
902(11). In fact, the Government’s position would mean that
all electronic information whose storage or transmission
could be verified by a third-party service provider would be
exempt from the hearsay rules—a novel proposition indeed,
and one we are unwilling to espouse.
16
B. Authentication by way of extrinsic evidence
Our conclusion that the Facebook chat logs were not
properly authenticated under Rule 902(11) does not end our
inquiry, for we may consider whether the Government has
presented sufficient extrinsic evidence to authenticate the chat
logs under Rule 901(a). See Vatyan v. Mukasey, 508 F.3d
1179, 1184 (9th Cir. 2007); United States v. Dockins, 986
F.2d 888, 895 (5th Cir. 1993). To answer this question, we
look to what the rule means in the social media context and
how it applies to the facts here.
Conventionally, authorship may be established for
authentication purposes by way of a wide range of extrinsic
evidence. See Fed. R. Evid. 901(b). In United States v.
McGlory, 968 F.2d 309 (3d Cir. 1992), for example, we
rejected a defendant’s challenge to the authentication of notes
that he had allegedly handwritten because, despite being
unable to fully establish authorship through a handwriting
expert, the prosecution had provided “sufficient evidence
from which the jury could find that [the defendant] authored
the notes.” Id. at 329. The notes had been seized from the
trash outside the defendant’s known residences; some of the
notes were torn from a notebook found inside his residences;
some notes were found in the same garbage bag as other
identifying information; and certain notes were written on
note paper from hotels where the defendant stayed during the
alleged conspiracy. Id. at 328–29.
Similarly, in United States v. Reilly, 33 F.3d 1396 (3d
Cir. 1994), when considering whether the government’s
evidence “support[ed] the conclusion that the radiotelegrams
are what the government claims they are, namely
radiotelegrams to and from the Khian Sea, many of which
17
were sent or received by [the defendant],” we determined that
the government had met its authentication burden by way of
not only direct testimony from individuals who identified the
radiotelegrams but also “multiple pieces of circumstantial
evidence.” Id. at 1405–06. This included testimony
explaining how the witness who produced the radiotelegrams
had come to possess them, the physical appearance of the
radiotelegrams, and evidence that the radiotelegrams were
sent to the defendant’s office or telex number. Id. at 1406.
We hold today 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.
The authentication of electronically stored information in
general requires consideration of the ways in which such data
can be manipulated or corrupted, see generally Lorraine v.
Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007), and the
authentication of social media evidence in particular presents
some special challenges because of the great ease with which
a social media account may be falsified or a legitimate
account may be accessed by an imposter, cf. Griffin v. State,
19 A.3d 415, 424 (Md. 2011) (analyzing state analogue to
Rule 901). But the authentication rules do not lose their
logical and legal force as a result. See Tienda v. State, 358
S.W.3d 633, 638–39 (Tex. Crim. App. 2012) (describing the
legal consensus as to the applicability of traditional
evidentiary rules to electronic communications and
identifying the many forms of circumstantial evidence that
have been used to authenticate email printouts, internet chat
room conversations, and cellular text messages); see also
Parker v. State, 85 A.3d 682, 687 (Del. 2014) (analyzing state
evidentiary rules and concluding that “[a]lthough we are
mindful of the concern that social media evidence could be
18
falsified, the existing [rules] provide an appropriate
framework for determining admissibility.”); Burgess v. State,
742 S.E.2d 464, 467 (Ga. 2013) (“Documents from electronic
sources such as the printouts from a website like MySpace are
subject to the same [state] rules of authentication as other
more traditional documentary evidence and may be
authenticated through circumstantial evidence.”). Depending
on the circumstances of the case, a variety of factors could
help support or diminish the proponent’s claims as to the
authenticity of a document allegedly derived from a social
media website, and the Rules of Evidence provide the courts
with the appropriate framework within which to conduct that
analysis.
Those Courts of Appeals that have considered the
issue have reached the same conclusion. In United States v.
Barnes, 803 F.3d 209 (5th Cir. 2015), the Fifth Circuit held
that the government laid a sufficient foundation to support the
admission of the defendant’s Facebook messages under Rule
901 where a witness testified that she had seen the defendant
using Facebook and that she recognized his Facebook account
as well as his style of communicating as reflected in the
disputed messages. Id. at 217. In United States v. Hassan,
742 F.3d 104 (4th Cir. 2014), the Fourth Circuit held that the
government properly linked the Facebook pages at issue to
the defendants by using internet protocol addresses to trace
the Facebook pages and accounts to the defendants’ mailing
and email addresses.8 Id. at 133. And in Vayner, the Second
8
The Fourth Circuit also ruled that those Facebook
pages were properly authenticated under Rule 902(11).
Hassan, 742 F.3d at 133–34. For the reasons already stated
19
Circuit held that the government failed to adequately
authenticate what it alleged was a printout of the defendant’s
profile page from a Russian social networking site where it
offered no evidence to show that the defendant had created
the page. 769 F.3d at 131. In all of these cases, the courts
considered a variety of extrinsic evidence to determine
whether the government had met its authentication burden
under Rule 901—each reiterating, in the course of that
analysis, that conclusive proof of authenticity is not required
and that the jury, not the court, is the ultimate arbiter of
whether an item of evidence is what its proponent claims it to
be. Barnes, 803 F.3d at 217; Vayner, 769 F.3d at 131;
Hassan, 742 F.3d at 133.
Applying the same approach here, we conclude the
Government provided more than adequate extrinsic evidence
to support that the disputed Facebook records reflected online
conversations that took place between Browne, Dalmida, and
three of the four minors, such that “the jury could reasonably
find” the authenticity of the records “by a preponderance of
the evidence.” Bergrin, 682 F.3d at 278.
First, although the four witnesses who participated in
the Facebook chats at issue—Dalmida and three of the
minors—did not directly identify the records at trial, each
offered detailed testimony about the exchanges that she had
over Facebook. This testimony was consistent with the
content of the four chat logs that the Government introduced
into evidence. Dalmida and two of the minors whose chat
logs are at issue further testified that after conversing with the
above, we do not agree with this portion of the court’s
authentication holding.
20
Button Facebook account or the 998 number that they
received through communications with Button, they met in
person with Button—whom they were able to identify in open
court as Browne. This constitutes powerful evidence not only
establishing the accuracy of the chat logs but also linking
them to Browne. See United States v. Tank, 200 F.3d 627,
630–31 (9th Cir. 2000) (holding government made a prima
face showing of authenticity under Rule 901(a) in part
because several co-conspirators testified that the defendant
was the person who showed up to a meeting that they had
arranged with the person who used that screen name).
Second, as reflected in the trial testimony of both
Browne and Special Agent Blyden, Browne made significant
concessions that served to link him to the Facebook
conversations. Most notably, Browne testified that he owned
the “Billy Button” Facebook account on which the search
warrant had been executed and that he knew and had
conversed on Facebook with Dalmida and two of the minors.
See, e g., Tank, 200 F.3d at 630–31 (holding government met
authentication burden where, among other things, defendant
admitted that screenname used in disputed text messages
belonged to him). Browne also testified that he owned the
phone that was seized from his residence—the same phone
from which DHS recovered certain images that the victims
identified on the stand as those they sent in response to
commands from either the Button or Dalmida Facebook
account or the 998 number. Cf. United States v. Simpson, 152
F.3d 1241, 1249–50 (10th Cir. 1998) (rejecting the
defendant’s claim that the trial court erred in admitting a
printout of an alleged chat room discussion between the
defendant and an undercover officer where, among other
things, the pages seized from the defendant’s home contained
21
identifying information that the undercover officer had given
the individual in the chat room). And Browne admitted that
he owned a second phone with the 344 number, which is
significant because, although Browne attempted to distance
himself from the incriminating phone with the 998 number
with the unsupported contention that he loaned it to other
individuals at various points in the relevant time period, one
of the challenged Facebook conversations shows that
“Button” also provided the 344 number to minor J.S. on two
occasions while trying to elicit sexual acts and photos. In
addition, in Browne’s post-arrest statements, which were
introduced at trial, he provided the passwords to the Button
Facebook account and to the phone with the 998 number and
admitted to exchanging nude photos with Dalmida, paying
J.S. for nude photos, going to J.B.’s home, and knowing a
third minor, T.P., whom he referenced by Facebook account
name.
Third, contrary to Browne’s contention that “there is
no biographical information in the [Facebook] records that
links [him] to the documents,” Appellant’s Br. at 17, the
personal information that Browne confirmed on the stand was
consistent with the personal details that “Button” interspersed
throughout his Facebook conversations with Dalmida and
three of the minors. For example, Browne testified that his
address was 2031 Estate Lovenlund, that he was a plumber,
and that he had a fiancée. The Facebook messages sent by
“Button” are, in turn, replete with references to the fact that
the sender was located or resided at Lovenlund. “Button”
also stated to one minor, “I’m a plumber.” App. 503. The
chats reflect that somewhere on his Facebook profile, Button
represented himself as being engaged. And in one of the
22
disputed Facebook chats, Button informed a minor that his
name was “Tony . . . Browne.”9 App. 519.
Lastly, the Government not only provided ample
evidence linking Browne to the Button Facebook account but
also supported the accuracy of the chat logs by obtaining
them directly from Facebook and introducing a certificate
attesting to their maintenance by the company’s automated
systems. To the extent that certified records straight from the
third-party service provider are less likely to be subject to
manipulation or inadvertent distortion than, for instance,
printouts of website screenshots, the method by which the
Government procured the records in this case constitutes yet
more circumstantial evidence that the records are what the
Government claims.
9
Browne argues that none of these biographical details
constituted “information that only [he] could be expected to
know,” Appellant’s Br. at 19, but we need not determine that,
by itself, the information could suffice to authenticate the chat
logs to conclude that they have some authentication value
when considered in combination with all of the other
available evidence. See Simpson, 152 F.3d at 1244 (computer
printout of alleged chat room discussions properly
authenticated not only by physical evidence recovered from
defendant’s home but also in light of the fact that the
individual participating in the chat gave the undercover
officer the defendant’s first initial and last name and street
address); Bloom v. Com., 554 S.E.2d 84, 86–87 (Va. 2001)
(defendant was sufficiently identified as individual who made
statements over instant message where detailed biographical
information provided online matched that of the defendant).
23
In short, this is not a case where the records proponent
has put forth tenuous evidence attributing to an individual
social media or online activity that very well could have been
conducted or fabricated by a third party. See, e.g., Vayner,
769 F.3d at 131; see also Smith v. State, 136 So. 3d 424, 433
(Miss. 2014) (holding that name and photo on Facebook
printout were not sufficient to link communication to alleged
author); Griffin, 19 A.3d at 423 (holding that the trial court
abused its discretion in admitting MySpace website evidence
because the state both failed to explain how it had obtained
the challenged records and failed to adequately link the
records to the defendant’s girlfriend). Far from it. This
record reflects abundant evidence linking Browne and the
testifying victims to the chats conducted through the Button
Facebook account and reflected in the logs procured from
Facebook. The Facebook records were thus duly
authenticated.
Browne makes much of the fact that the Government
failed to ask the testifying witnesses point-blank to identify
the disputed Facebook chats. As we explained, however, in
McQueeney v. Wilmington Trust Co., 779 F.2d 916 (3d Cir.
1985), where we reversed the district court’s determination
that certain records could not be admitted into evidence
unless they were introduced by a testifying witness,
circumstantial evidence can suffice to authenticate a
document. Id. at 928; see also Fed. R. Evid. 903 (“A
subscribing witness’s testimony is necessary to authenticate a
writing only if required by the law of the jurisdiction that
governs its validity.”). Although a witness with personal
knowledge may authenticate a document by testifying that the
document is what the evidence proponent claims it to be, this
is merely one possible means of authentication and not, as
24
Browne would have it, an exclusive requirement. See Fed. R.
Evid. 901(b)(1); Simpson, 152 F.3d at 1249–50 (rejecting the
defendant’s contention that statements from a chat room
discussion could not be attributed to him where the
government could not identify that they “were in his
handwriting, his writing style, or his voice,” as “[t]he specific
examples of authentication referred to by [the defendant] . . .
are not intended as an exclusive enumeration of allowable
methods of authentication”).
In sum, Browne’s authentication challenge collapses
under the veritable mountain of evidence linking Browne to
Billy Button and the incriminating chats.
C. Admissibility
Having concluded that the Facebook records were
properly authenticated by way of extrinsic evidence, we turn
to Browne’s more general argument that the records were
inadmissible. Evidence that is properly authenticated may
nonetheless be inadmissible hearsay if it contains out-of-court
statements, written or oral, that are offered for the truth of the
matter asserted and do not fall under any exception
enumerated under Federal Rule of Evidence 802. McGlory,
968 F.2d at 331.
Here, the Government offered more than sufficient
evidence to authenticate four of the five Facebook records as
chats that Browne himself participated in by way of the
Button account, and these four records were properly
admitted as admissions by a party opponent under Rule
801(d)(2)(A). See id. at 334 & n.17 (observing that
handwritten notes were admissible as admissions by a party
opponent if the prosecution established defendant’s
25
authorship by a preponderance of the evidence); see also
United States v. Brinson, 772 F.3d 1314, 1320 (10th Cir.
2014) (same conclusion regarding Facebook messages);
United States v. Siddiqui, 235 F.3d 1318, 1323 (11th Cir.
2000) (same conclusion regarding authenticated email).10
Not so for the fifth.
We agree with Browne that the single chat in which
Browne did not participate and which took place between
Dalmida and J.B. regarding Button’s “almost rape[]” of J.B.
was inadmissible hearsay. App. 483. Notwithstanding the
other reasons the Government may have sought to admit it,
the record functioned at least in part to prove the truth of the
matter asserted, that is, that Browne sexually assaulted J.B.
and subsequently threatened her with video evidence of the
10
As for the statements in the chat logs that the victims
made to Browne, under our precedent they were not hearsay
because they were not offered into evidence to prove the truth
of the matter asserted; rather, they were introduced to put
Browne’s statements “into perspective and make them
intelligible to the jury and recognizable as admissions.”
United States v. Hendricks, 395 F.3d 173, 184 (3d Cir. 2005)
(quoting United States v. McDowell, 918 F.2d 1004, 1007 (1st
Cir. 1990)); see also McDowell, 918 F.2d at 1007–08 (“[The
defendant’s] part of the conversations was plainly not
hearsay. Nor can a defendant, having made admissions, keep
from the jury other segments of the discussion reasonably
required to place those admissions into context . . . .
Moreover, because [the informant’s] statements were
introduced only to establish that they were uttered and to give
context to what [the defendant] was saying, they were not
hearsay at all.”).
26
assault. See McGlory, 968 F.2d at 332 (“This Court . . . has
disfavored the admission of statements which are not
technically admitted for the truth of the matter asserted,
whenever the matter asserted, without regard to its truth
value, implies that the defendant is guilty of the crime
charged.”).11
11
As with authentication, we do not foreclose the
possibility that the chat log might have warranted a different
hearsay analysis had the Government sought the admission of
only limited portions of it. In United States v. Turner, 718
F.3d 226 (3d Cir. 2013), for example, where we assessed the
admissibility of certain bank records, we held that the district
court did not clearly err in applying the residual hearsay
exception, which permits a district court to admit an out-of-
court statement not covered by Rules 803 or 804 where,
among other things, “the statement has equivalent
circumstantial guarantees of trustworthiness.” Id. at 233
(quoting Fed. R. Evid. 807). But the Government here does
not contend that this hearsay exception or any others
enumerated in Rule 803 are applicable to this chat log. And
with good reason. For instance, although the log reflects that
the chat participants made a number of emotionally charged
statements, it purports to describe an event that occurred the
previous day and thus was not admissible under the present
sense impression or excited utterance exception to the hearsay
rule. Fed. R. Evid. 803(1)–(2); see United States v. Green,
556 F.3d 151, 156 (3d Cir. 2009); United States v. Brown,
254 F.3d 454, 458 (3d Cir. 2001). And nothing in the record
or the Government’s brief suggests the chat log was
introduced to show Dalmida or J.B.’s “then-existing state of
27
Although we conclude that the District Court erred in
admitting this chat log, we do not perceive grounds for
reversal. Reversal is not warranted if it is “highly probable
that the error did not contribute to the judgment.” United
States v. Brown, 765 F.3d 278, 295 (3d Cir. 2014) (quoting
United States v. Cunningham, 694 F.3d 372, 391–92 (3d Cir.
2012)). This “high probability” standard for non-
constitutional harmless error determinations “requires that the
court possess a sure conviction that the error did not prejudice
the defendant.” United States v. Franz, 772 F.3d 134, 151
(3d Cir. 2014) (quoting Cunningham, 694 F.3d at 392).
We are confident there was no prejudice here. As
detailed above, the Government set forth abundant evidence
that not only served to tie Browne and the victims to the chat
logs but also supported Browne’s guilt on all of the counts for
which he was convicted irrespective of those records. Indeed,
the two individuals who made the hearsay statements
reflected in the fifth chat log, Dalmida and J.B., testified at
length to the very details included in that Facebook chat log.
Because there was overwhelming, properly admitted evidence
supporting Browne’s conviction on every count, and the sole
improperly admitted Facebook record was “at most,
duplicative of [the witnesses’] admissible testimony,” United
States v. Kapp, 781 F.2d 1008, 1014 (3d Cir. 1986), the
erroneous admission was harmless and Browne’s convictions
must be sustained. See Barnes, 803 F.3d at 218 (concluding
that any potential error in admitting disputed Facebook
messages was harmless, as “the content of the messages was
mind,” Fed. R. Evid. 803(3). See United States v. Donley,
878 F.2d 735, 737 (3d Cir. 1989).
28
largely duplicative” of witness testimony and “given the
overwhelming evidence of [the defendant’s] guilt”).
* * *
For the foregoing reasons, we will affirm the judgment
of the District Court.
29