Argued: May 3, 2018
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.
Michael M. Losavio, Louisville, Kentucky, for Appellant.
A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville,
Tennessee, for Appellee.
Michael M. Losavio, Louisville, Kentucky, for Appellant.
A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville,
Tennessee, for Appellee.
Before: MOORE, THAPAR, and BUSH, Circuit Judges.
NELSON MOORE, CIRCUIT JUDGE.
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.
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
Investigation, Indictment, and Pre-Trial Motions
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
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.
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).
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. 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,
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
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).
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
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.
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
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
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).
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).
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. 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.
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.
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. Id. at 169 (Page ID #767).
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).
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).
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
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
Sentencing and Motion for New Trial
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).
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
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).
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).
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
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 ...