Eighth Circuit Agrees With Third and Seventh That Social Media Site May Be Authenticated With Extrinsic Evidence Under Fed. R. Evid. 901(a)

In United States v. Lamm, No. 20-1128 (8th Cir. July 29, 2021), the Eighth Circuit affirmed a conviction for distribution, production, and possession of child pornography, holding that the district court did not err in admitting evidence from the defendant’s Facebook page over objections to authentication and hearsay.

“A Homeland Security Special Agent was investigating Jason Jorgenson and his Facebook account for suspected distribution of child pornography. Jorgenson often communicated with two other Facebook accounts, one using the name Kevin Lamm and one using Mike Malone. The agent received certified records from Facebook, which included copies of messages between the three accounts.”

“The agent suspected that Lamm was behind the Malone account. That was bolstered by subscriber information in the certified records from Facebook. Both accounts were associated with a cell phone number belonging to a Verizon account in Kevin Lamm’s name, and the two accounts displayed identical or similar photographs of Lamm making the same hand gestures and wearing the same clothes.”

At trial, the “Government wanted to introduce records from Facebook that showed Kevin Lamm operated both accounts. The Government argued that the records were sufficiently self-authenticated under Federal Rule of Evidence 902(11) because Facebook certified them. Lamm objected. The district court found certification from Facebook was not enough, and that the Government had to provide further authentication under Rule 901(a) by offering extrinsic evidence to tie them both to Lamm.”

“At trial, the Government offered that evidence. It introduced images, the memory cards, information from additional websites containing identical subscriber information, and identified matching clothing and household items depicted in the images posted on both accounts. After the district court admitted the Facebook exhibits, a jury convicted Lamm on all counts.”

The Eighth Circuit affirms. It holds, consistent with the Third and Seventh Circuits, that certification of a Facebook page by the social-media company is insufficient to self-authenticate the contents, but that certification confirmed by other extrinsic, circumstantial evidence is sufficient under Rule 901(a).

The panel holds that the government met its burden. “First, the Government linked the same cell phone number—in Kevin Lamm’s name—to both accounts. Second, the same images that appeared on Lamm’s Facebook account appeared on the Malone account. Third, Lamm had copies of those images on memory cards in his apartment. Fourth, those same memory cards also contained screenshots of private messages only the Malone account could access. Fifth, other online subscriptions found on Lamm’s computer used an email address containing the name Mike Malone. Taken together, this evidence provided a rational basis for the district court to pass the question of authentication to the jury.”

The panel also holds that the Facebook exhibits were not inadmissible hearsay. The panel holds that the exhibits were offered not to prove the truth of the matter asserted, but to show that the defendant had access to the account, that the defendant shared his email with the government agent, and that the personal email address connected to his Facebook account. Other pages were offered simply to identify the defendant, also not hearsay. Finally, two pages were properly admitted “because they were offered to provide context as to why [teen female] T.B. would be communicating with the Malone account.”

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