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, 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.
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 repeated the pattern he had established with Dalmida, threatening all of them with the
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.
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.
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 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
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 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.
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.
Browne was convicted by a jury after a two-day trial.
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).
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 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.
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
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 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) at 901-15 (1993)).
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, 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.
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
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 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.
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.
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 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, 419 Md. 343, 19 A.3d 415, 424 (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 falsified, the existing [rules] provide an appropriate framework for determining admissibility."); Burgess v. State, 292 Ga. 821, 742 S.E.2d 464, 467 (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
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 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
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 disputed Facebook chats, Button informed a minor that his name was "Tony... Browne."
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
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 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.
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 authorship by a preponderance of the evidence);
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 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.").
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
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For the foregoing reasons, we will affirm the judgment of the District Court.