E-Alert Case Updates

Fourth Circuit holds social media sites authenticated by certification of records custodians

U.S. v. Hassan
742 F.3d 104 (2013)
by Gregory S. Emrick, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://scholar.google.com/scholar_case?case=5966608497539259124&hl=en&as_sdt=6&as_vis=1&oi=scholarr

In U.S. v. Hassan, the Fourth Circuit reviewed numerous issues arising from a criminal trial in which the defendants, Mohammad Omar Aly Hassan and Ziyad Omar, were convicted of conspiracy to provide material support to terrorists, conspiracy to murder, kidnap, maim and injury persons in foreign country, conspiracy to kill federal officer or employee and related crimes. The prosecutors presented evidence related to Facebook pages, YouTube videos and other online videos that were posted by the defendants. The postings and videos presented significant evidence supporting the conspiracy convictions, and was admitted over the defenses’ objections.

After the trial, the defendants filed an appeal raising numerous issues including that the evidence obtained from Facebook and Youtube was not properly authenticated, and that the court failed to permit Hassan to present evidence of subsequent comments that were uploaded with a training video, thus violating the rule of completeness.

In addressing the Facebook and Youtube evidence, the Court observed that Fed. R. Evid. 902(11) authorized the admission of records that were accompanied by a certification of the custodian of record as provided by Fed. R. Evid. 803(6)(A)-(C). The certificate of custodian must state: 1) that the records were made at or near the time by — or transmitted by — someone with knowledge; 2) that the records are kept in the regular course of business; and 3) that making the record was a regular practice. The Court also observed that Fed. R. Evid. 901 only requires that there be sufficient information to support a finding that the matter in question is what the proponent claims to be authenticated. The authentication burden is not high and only requires a prima facie showing.

In this matter, the defendants’ Facebook pages were obtained through “screenshots” at various times. The screenshots provided information related to the defendants, including their biographical information, photos and links to the relevant Youtube videos. The videos were obtained from the Google servers, the owner of Youtube. At trial, the prosecution presented the evidence with certificates of custodian from Facebook and Google that confirmed that the evidence was created and retained as business records, thus satisfying Rule 902(11). The Court further held that the trial judge did not abuse its discretion in admitting the evidence where the prosecution had satisfied Rule 901(a) by tracking the Facebook pages and accounts to the defendants’ mailing and email addresses using the internet protocol addresses. The social media evidence was properly admitted.

The Court further held that a physical training video, which had been uploaded by defendant Hassan to RossTraining.com was properly admitted, and the court had properly refused to admit the subsequent comments to the video under the rule of completeness. Fed. R. Evid. 106. The video depicted the defendant in a series of religiously inspired physical training workouts and made reference to supporting religious troops, interpreted as terrorist sympathizers. Defendant Hassan argued that the rule of completeness required that the subsequent online comments be admitted as they addressed the controversy that his video caused and included his specific denial of supporting terrorists. The Court held that the rule of completeness did not allow otherwise inadmissible evidence to be admitted into evidence, and the exculpatory statements made in the comments did not fit into any hearsay exception. The trial judge’s ruling that the “follow up postings on RossTraining.com could not be used to establish the truth of any matter asserted — specifically, to show that Hassan did not support terrorists” was not an abuse of discretion. Hassan, 742 F.3d at 135.

The Court of Appeals for the Fourth Circuit rejected the various arguments on appeal and affirmed the convictions from the lower Court.