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United States v. Farrad

United States Court of Appeals, Sixth Circuit

July 17, 2018

United States of America, Plaintiff-Appellee,
v.
Malik F. Farrad, Defendant-Appellant.

          Argued: May 3, 2018

          Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 3:14-cr-00110-1-Thomas A. Varlan, Chief District Judge.

         ARGUED:

          Michael M. Losavio, Louisville, Kentucky, for Appellant.

          Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

         ON BRIEF:

          Michael M. Losavio, Louisville, Kentucky, for Appellant.

          Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

          Before: MOORE, THAPAR, and BUSH, Circuit Judges.

          OPINION

          KAREN NELSON MOORE, CIRCUIT JUDGE.

         Although the phrase "going undercover" may still connote high-stakes masquerading, twenty-first century undercover investigations can begin and end in cyberspace. This case stems from an undercover investigation on Facebook. The subject of the investigation, Defendant-Appellant Malik Farrad, was a felon prohibited by federal law from possessing a firearm. In June 2015, after a two-day trial, a jury found Farrad guilty of breaking that prohibition. No physical evidence was presented, no witness claimed to have seen Farrad with a gun, and Farrad himself never made any statements suggesting that he owned a gun; instead, the Government relied primarily on photographs obtained from what was evidently Farrad's Facebook account. To help prove its case, however, the Government called two police officers: Officer Garrison, who testified that criminals are particularly likely to upload photos of criminal deeds soon after committing those deeds, and Officer Hinkle, who testified at length about the similarities between the photos and a real gun, as well as the dissimilarities between the photos and the closest fake gun of which he was aware.

         Farrad now challenges the sufficiency of the evidence, the admission of the photos into evidence, and the testimony that Officers Garrison and Hinkle were allowed to offer, as well as the district court's denial of his motion for a new trial, his sentencing as an armed career criminal, and the district court's failure to suppress the photos on Fourth Amendment grounds. For the reasons that follow, we AFFIRM.

         I. BACKGROUND

         A. Investigation, Indictment, and Pre-Trial Motions

         After serving time in prison for a previous felony, Farrad was released from federal custody in January 2013. See, e.g., R. 5-1 (Warrant Application at 3) (Page ID #9). Farrad came to the attention of local law enforcement sometime after June 10 of that same year, when "[v]arious confidential informants and concerned citizens" evidently "reported observing Farrad to be in possession of one or more firearms while in Johnson City, Tennessee." Id. at 4 (Page ID #10). Some time later, a Johnson City police officer named Thomas Garrison, using an undercover account, sent Farrad "a friend request on Facebook." R. 71 (Trial Tr. Vol. I at 81, 90-91) (Page ID #679, 688-89). After Farrad "accept[ed] the friend request," Garrison was able to see more of Farrad's photos. See id. at 81 (Page ID #679). "One [photo] in particular" "caught [his] interest": a photo that showed what appeared to be three handguns "sitting on a closed toilet lid in a bathroom." Id. at 81-82 (Page ID #679-80); see also Appellant's App'x at

         6. The photo had been uploaded on October 7, 2013. R. 71 (Trial Tr. Vol. I at 83) (Page ID #681); Appellant's App'x at 7.

         Garrison brought the photo to the attention of Johnson City police officer and FBI task force officer Matthew Gryder, who applied on October 25, 2013, for a warrant to search Facebook's records for "information associated with the Facebook user ID MALIK.FARRAD.5." R. 5-1 (Warrant Application at 4, 10-11) (Page ID #10, 16-17). A federal magistrate judge granted the warrant application. R. 5-4 (Search and Seizure Warrant at 1) (Page ID #25). The warrant mandated execution "on or before November 6, 2013," id., and the return executed by federal law enforcement indicates that the warrant was "served electronically" on Facebook on November 1, 2013, id. at 2 (Page ID #26).

         The resulting data yielded a series of additional photos that are central to this case: some show a person who looks like Farrad holding what appears to be a gun, see, e.g., Appellant's App'x at 11-14, while others show a closer-up version of a hand holding what appears to be a gun, see, e.g., id. at 16-26.[1] While none of the photos shows a calendar, date, or one-of-a-kind distinguishing feature, the person in the photos has relatively distinctive tattoos, and some of the photos show, as backdrop, the décor of the room in which they were taken. See id. at 6, 11-12, 19-20, 22-23, 25-26. Facebook records revealed that the photos had been uploaded on October 11, 2013. See id. at 12, 15, 18, 21, 24, 26.

         In September 2014, a federal grand jury charged Farrad with having, "on or about October 11, 2013, . . . knowingly possess[ed] . . . a firearm, namely, a Springfield, Model XD, .45 caliber, semiautomatic pistol." R. 3 (Indictment) (Page ID #3). On March 26, 2015, Farrad filed a pro se motion seeking an evidentiary hearing, dismissal of the indictment against him, and suppression of the Facebook photos on Fourth Amendment grounds. R. 22 (Pro Se Mot.) (Page ID #85-91). The magistrate judge assigned to Farrad's case denied that motion on April 9, 2015, on the grounds that Farrad already had appointed counsel and the local rules prohibited a represented party from "act[ing] in his or her own behalf" without "an order of substitution." R. 24 (Order at 1) (Page ID #93) (quoting E.D. Tenn. Local Rule 83.4(c)). Farrad's trial counsel did not renew Farrad's motion.

         The parties did, however, litigate the admission of the photos on evidentiary grounds. The Government argued that the Facebook photos qualified as business records under Federal Rule of Evidence 803(6) and that they were, as such, self-authenticating under Federal Rule of Evidence 902(11). R. 26 (Gov't's Mot. in Limine at 1) (Page ID #100). In support of its assertion, the Government introduced a certification by a Facebook-authorized records custodian, who attested that the records provided by Facebook-including "search results for basic subscriber information, IP logs, messages, photos, [and] other content and records for malik.farrad.5"-"were made and kept by the automated systems of Facebook in the course of regularly conducted activity as a regular practice of Facebook" and "made at or near the time the information was transmitted by the Facebook user." R. 26-1 (Facebook Certification) (Page ID #105). In addition to disputing admissibility under Federal Rules of Evidence 401, 402, 403, 404, 405, and 406, R. 30 (Def.'s Response to Gov't's Tr. Br. at 3) (Page ID #119), Farrad's trial counsel argued that the photos, despite the custodian's affidavit having been "done correctly under the federal rules," were "hearsay within hearsay" and did not "authenticate who took the pictures, when the pictures were taken, by whom, at what time," R. 60 (Pretrial Conf. Tr. at 11) (Page ID #456). All that the custodian could attest to, trial counsel emphasized, was "that at some point these pictures were uploaded to what [was] allegedly [Farrad's] Facebook account"; the custodian could not "testify as to . . . who took [the photos], when they were taken, where they were taken." Id. at 12 (Page ID #457). On June 15, 2015, the district court concluded that it had "found no indication of a lack of trustworthiness" and that the photos qualified as business records under Rules 803(6) and 902(11). See R. 73 (Pretrial Hr'g Tr. at 33) (Page ID #872). It also determined that the photos were relevant. See id. at 35-37 (Page ID #874-76).

         B. Trial

         Trial began the next day. At trial, the jury first heard from Garrison, who not only detailed his discovery of the precipitating toilet-seat photo, R. 71 (Trial Tr. Vol. I at 83) (Page ID #681), but also, in his capacity as an experienced user of social media in the service of police investigations, see id. at 80 (Page ID #678), discussed broader trends in how people who have committed crimes behave on social-media platforms. After Garrison conceded that users "can upload . . . pictures to Facebook that were taken at different times," id. at 84 (Page ID #682), the following exchange occurred:

GOVERNMENT: Okay. Now, in your training and experience and drawing upon the hundreds of cases you said you've been involved in using social media, when you come across people involved in criminal conduct who have uploaded photographs to their social media account, how quickly do they do that, relative to when that photograph is actually taken?
DEFENSE COUNSEL: Object as speculation, Your Honor.
THE COURT: Your response.
GOVERNMENT: Your Honor, Mr. Garrison has testified about his training in social media investigations, hundreds of cases he said. He can certainly testify as to what his experience has been when people upload photographs in the past, other investigations he's been involved in.
THE COURT: With those parameters in mind, the Court will overrule the objection.
GARRISON: Generally, in my experience, it's been more of a-you know, like I say, it can be instantaneous. But it is more of a present-type of thing.

Id.

         Although Garrison admitted that he could not "think of a specific instance" in which he had "talked to a target about specific things on Facebook" or recall "specific instances of training" on the subject, id. at 85 (Page ID #683), the Government asked him to explain why "people choose to post criminal conduct that they're involved in, to social media," id. at 86 (Page ID 684). This exchange followed:

GARRISON: I would say that it mirrors the same reason that-that people in general post things on Facebook. But criminals specifically, they like to brag about their-their activities, they're proud of it, and just like anyone, they want to let their friends know what they're doing, let their friends know, you know, where they're at, what's going on.
GOVERNMENT: In terms of your training and experience, is it more likely or less likely in terms of all of the cases you've seen before, that someone uploads those photographs immediately as opposed to sitting and waiting to upload them weeks or months or years later?
GARRISON: In my experience, I would consider that more likely.
GOVERNMENT: Now, in the context of social media applications that someone uses on their cell phone, say, does the use of those applications on someone's cell phone make it more or less likely in your training and experience that those photographs are going to be uploaded at the time they're actually created?

Id. Defense counsel again objected on speculation and relevancy grounds, and the district court again allowed the questioning to continue "within the limited circumstances of [Garrison's] experience." Id. at 86-87 (Page ID #684-85). Garrison answered that "the apps makes it easier and more likely for someone to immediately upload a photograph taken with their cell phone." Id. This line of questioning then concluded with the following exchange:

GOVERNMENT: In contrast, then, how many times relative to instances in which people have uploaded immediately, contrasted that [sic] to the number of times you've seen photographs depicting criminal conduct that have been held back for extended periods of time, weeks, months or years?
GARRISON: I would-I would consider that more rare. I can't-I can't think of a specific number or a-or an instance just off the top of my head.

Id. at 87-88 (Page ID #685-86). Garrison also explained via direct examination that while digital photographs generally contain "metadata" that preserves, for example, "the time and date that the photograph was taken," "Facebook actually strips that metadata as the photograph is uploaded to Facebook," rendering the date of creation unknown. Id. at 89 (Page ID #687).[2]

         The jury also heard about and saw the photos obtained from Farrad's Facebook account, chiefly through testimony by Gryder. See id. at 94-109 (Page ID #692-707). Gryder identified Farrad and, while introducing the photos, noted that each photo had come from a Facebook account identified as "Malik.Farrad.5," registered to a "Malik Farrad" with the email address "AllaFarrad@gmail.com," and associated with Knoxville, Tennessee. Id. at 96-98 (Page ID #694-96). As Gryder explained, aside from the toilet-seat photo, all of the Facebook photos had been uploaded on October 11, 2013. Id. at 99-104 (Page ID #697-702). Gryder further explained that he had visited Farrad's residence as part of his investigation and that he had learned that Farrad had occupied two different units in the same complex, first residing in Apartment 15 and then moving to Apartment 9. Id. at 105 (Page ID #703). Gryder then identified Apartment 15 as the backdrop of several of the photos, noting an apparent match with the "mirror in the bathroom, . . . the color of the door, and the color of the walls," as well as with a distinctive paint job on "the edge of [a] door frame." Id. at 107 (Page ID #705). The jury later learned from the property manager of the apartment complex that Farrad had lived in Apartment 15 from February 6, 2013, until October 15, 2013. Id. at 119-20 (Page ID #717-18).

         The jury also heard from Morristown police officer Kenneth Hinkle, who served as his department's armorer, had been a gunsmith "for over 30 years," "started apprenticing" when he was thirteen years old, and had "handled or worked on" "[t]housands" of firearms over the years. Id. at 124-25 (Page ID #722-23). With reference to the Facebook photos, a real Springfield XD .45 caliber handgun, and photos of a real Springfield XD .45 caliber handgun, Hinkle pointed out various commonalities that led him to conclude that the item in the Facebook photos was a real Springfield XD .45 caliber handgun.[3] See id. at 126-46 (Page ID #724-44). These commonalities included, for example, distinctive symbols and markings on the gun's slide, id. at 131-32 (Page ID #729-30), a common lever above the trigger guard and ridges across that lever, id. at 137 (Page ID #735), cocking serrations along the rear left side of the slide, id. at 139-40 (Page ID #737-38), and the shape and position of the firing pin on the rear of the slide, id. at 143-44 (Page ID #741-42). Compare Appellant's App'x at 16-17, 26, with id. at 34, 36, 38.

         Hinkle then discussed the possibility of "any replicas, toys, fakes, airsoft[]" versions of the Springfield XD .45 caliber handgun. R. 71 (Trial Tr. Vol. I at 146) (Page ID #744). Hinkle testified that he had "not been able to locate, during any of [his] research, a toy, airsoft, BB firearm of the XD, XD series pistol in any caliber." Id. The Government then asked if he knew whether Springfield had "ever provided the licenses to manufacture an imitation of this firearm to another company." Id. Hinkle responded: "No, sir, they have not." Id.

         Hinkle proceeded to compare the Facebook photos against real and photographic versions of what he testified was the nearest non-gun comparator to the Springfield XD .45 caliber handgun: an airsoft replica of a Springfield XD(m) .40 caliber handgun. See id. at 147-50 (Page ID #745-48). He noted, for example, distinctions between the muzzles, including the presence of an orange tip, id. at 151-52 (Page ID #749-50), and between the cocking serrations, id. at 154-55 (Page ID #752-53). He compared the shape of the rear of the replica XD(m) .40 to the shape of the rear of the real XD .45 and the shape of the rear of the gun in the Facebook photos, noting that the former was angled along the side whereas the latter two were boxier. See id. at 155-58 (Page ID #753-56). Compare Appellant's App'x at 16-17 (Facebook photos, boxy), with id. at 36-38 (real XD .45, boxy), with id. at 42-44 (replica XD(m) .40, trapezoidal). At the end of Hinkle's direct examination, Hinkle concluded that the two were "totally different firearms" and suggested again that the image in the photos must be "an actual firearm" because "[t]hey never made an airsoft." Id. at 159 (Page ID #757). Although Farrad's attorney attempted to get Hinkle to admit on cross examination that he could not tell from photographs whether something was in fact a "real firearm," Hinkle insisted that he could tell from the photographs alone.[4] Id. at 169 (Page ID #767).

         Following Hinkle's testimony, the Government rested, and Farrad moved without argument for a directed verdict. Id. at 186 (Page ID #784). Following the Government's equally cursory opposition and a brief recitation of the standard, the district court denied Farrad's motion. Id. at 187 (Page ID #785). Farrad did not testify, nor did the defense call any other witnesses. See R. 72 (Trial Tr. Vol. II at 7) (Page ID #795).

         Closing arguments occurred on June 17, 2015. The Government began its closing argument by noting that the offense at issue was "charged to have happened on or about October the 11th, 2013, . . . because that was the date the vast majority of the photos . . . were uploaded to Facebook by the defendant." Id. at 9 (Page ID #797). The Government argued that while it could not prove exactly when the photos were uploaded because "Facebook strips all of that data out of the photographs that it receives when people upload them," Garrison's testimony "based upon his training and experience" was that "when people are involved in criminal conduct and then they document that conduct in photos or videos, they're uploading it right away." Id. The Government also suggested that Garrison's testimony was "in line with what we do on a daily basis." Id. at 10 (Page ID #798).

         Farrad's trial counsel argued, meanwhile, that the Government's case was built on "[p]ure speculation," and that people project false images of themselves all the time, for all sorts of reasons-for example, employing "a sign out front that says this house is protected by a security system" when in fact no such security system exists, or a sticker that says "[t]his house protected by Smith & Wesson" when in fact no firearm exists. Id. at 14-15 (Page ID #802-03). Defense counsel also emphasized that there was no physical evidence connecting Farrad to a real firearm, argued that the lack of physical evidence belied the Government's argument, and questioned whether the photos were clear enough or Hinkle believable enough to conclude beyond a reasonable doubt that the photos in fact showed a real firearm. Id. at 17-21 (Page ID #805-09).

         The district court then instructed the jury, noting among other directives that because "[t]he indictment charges the crime happened on or about October 11, 2013, . . . the government does not have to prove that the crime happened on that exact date, but the government must prove that the crime happened reasonably close to that date." Id. at 33 (Page ID #821). Farrad summarily renewed his motion for a judgment of acquittal after the jury had been excused for deliberations, which motion the district court again summarily denied. Id. at 44-45 (Page ID #832-33). The jury found Farrad guilty. R. 40 (Verdict Form) (Page ID #159).

         C. Sentencing and Motion for New Trial

         Prior to sentencing, the probation department determined that Farrad qualified as an armed career criminal under 18 U.S.C. § 924(e) ("the ACCA") based on a Tennessee conviction for simple robbery and federal convictions for eight counts of distribution and intent to distribute crack cocaine. See R. 53 (Revised Presentence Investigation Report ("PSR") at 6-9) (Page ID #411-14). Farrad objected, arguing (among other issues) that the record did not establish that his eight drug-trafficking convictions were committed on different occasions, that the application of the ACCA to him at sentencing violated his Fifth Amendment right to due process and Sixth Amendment right to a jury trial, and that his eight drug-trafficking convictions did not categorically qualify as serious drug offenses under the ACCA. R. 47 (Def.'s Objections to PSR) (Page ID #311-28); R. 48 (Def.'s Supp. Objections to PSR) (Page ID #515-24).

         On January 14, 2016, the district court rejected each of these contentions. R. 65 (Sentencing Tr. at 53-65) (Page ID #560-72). After applying the sentencing factors to Farrad's case, the district court pronounced a sentence of 188 months of imprisonment. Id. at 73 (Page ID #580); see also R. 56 (Judgment at 1) (Page ID #423).

         One week later, Farrad moved pro se for a new trial, arguing in part that the Government had presented "false and misleading perjured testimony to the jury" in the form of Hinkle's claims regarding the existence of fake-gun versions of the Springfield XD .45. R. 59 (Pro Se Mot. for New Trial at 6-12) (Page ID #439-40). The district court appointed counsel to assist Farrad, R. 70 (Mem. & Order) (Page ID #597-98), and counsel filed a reply that-potentially contrary to Hinkle's testimony-pointed out two websites offering to sell "inert replicas or simulated versions of the Springfield [XD] .45" produced by a company called Ring Manufacturing, R. 88 (Def.'s Reply re Mot. for New Trial at 1-2) (Page ID #932-33); see also R. 88-1 (Ex. 1, Def.'s Reply re Mot. for New Trial) (Page ID #936-37) (website printouts).

         On November 15, 2016, the district court denied Farrad's motion, stating that it could not "find that Hinkle's testimony was false and that the government knew it was false," given both that Farrad had "provide[d] no evidence as to the date Ring Manufacturing began producing the firearm replicas of the Springfield .45 caliber Model XD" and that no evidence had been presented suggesting knowledge of any falsity. R. 89 (Mem. Op. & Order at 11) (Page ID #948). The district court also concluded that any falsity was nevertheless immaterial, given that the replicas were "painted bright blue for quick recognition as inauthentic" and therefore "would be easily distinguishable from an actual firearm and easily distinguishable from the firearms in the photographs." Id. at 11-12 (Page ID #948-49).

         Farrad filed timely notices of appeal following both (1) the entry of final judgment after sentencing, R. 58 (First Notice of Appeal) (Page ID #433), and (2) the denial of his motion for new trial, R. 90 (Second Notice of Appeal) (Page ID #951). Those appeals have since been consolidated and are now before this court.

         II. DISCUSSION

         Farrad raises seven arguments on appeal: (1) that there was insufficient evidence introduced at trial to support his conviction; (2) that the Facebook photos should not have been admitted into evidence; (3) that Officers Hinkle and Garrison should not have been permitted to testify as experts; (4) that the district court should have granted Farrad's motion for a new trial; (5) that Farrad did not in fact qualify as an armed career criminal under the ACCA; (6) that finding him to be an armed career criminal at sentencing violated his Fifth and ...


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