United States v. Tony Browne

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-1798

_____________

UNITED STATES OF AMERICA

v.

TONY JEFFERSON BROWNE,

Appellant

_____________

On Appeal from the District Court

of the Virgin Islands

(D.C. No. 3-13-cr-00037-001)

District Judge: Curtis V. Gomez

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Argued December 10, 2015

BEFORE: FISHER, KRAUSE, and ROTH, Circuit Judges

(Filed: August 25, 2016)

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Everard E. Potter, Esq. [ARGUED]

Ronald Sharpe, Esq.

Office of United States Attorney

5500 Veterans Building, Suite 260

United States Courthouse

St. Thomas, VI 00802

Counsel for Appellee

Omodare Jupiter, Esq. [ARGUED]

Office of Federal Public Defender

1115 Strand Street

Suite 201

Christiansted, VI 00820

Counsel for Appellant

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OPINION OF THE COURT

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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,

2

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.

I. Background

A. Facts

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

3

repeated the pattern he had established with Dalmida,

threatening all of them with the public exposure of their

images unless they agreed to engage in various sexual acts

and sent additional explicit photos of themselves to his Button

Facebook account or to his phone number (“the 998

number”). He arranged to meet with three of the minors and

sexually assaulted one.

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.

B. Proceedings

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. 1 The fifth chat did

1

The Government did not seek to admit into evidence

any Facebook messages sent from the Button account to the

remaining minor victim, A.M., but photos of A.M. were

4

not involve Button’s account and took place between

Dalmida and J.B., on the subject of Browne’s sexual assault

of J.B. The certificate stated, in accordance with Rule

902(11) of the Federal Rules of Evidence, that the records

that Facebook had produced for the named accounts met the

business records requirements of Rule 803(6)(A)–(C).

Tracking the language of Rule 803(6), the custodian certified

that the records “were made and kept by the automated

systems of Facebook in the course of regularly conducted

activity as a regular practice of Facebook . . . [and] were

made at or near the time the information was transmitted by

the Facebook user.” App. 403; see Fed. R. Evid. 803(6).

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

among those recovered from the phone seized from Browne’s

home and admitted into evidence.

5

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 number. Two of the minors who met Browne in person

testified that they were forced to do more than send additional

explicit photographs. A.M. explained that after receiving

instructions to text her photos to the 998 number, she received

messages from the Button account demanding sexual

intercourse and threatening her with the exposure of her

images if she refused. After sending her the images,

presumably to prove they were in his possession, the

individual using the 998 number repeated his threat and

instructed her to “play with [her]self” on a video chat site so

he could watch. Fearful he would follow through on his

threat, she complied. Another minor, J.B., testified that after

she arranged to meet Browne through the Button account,

Browne sexually assaulted her and recorded the encounter.

She also confirmed that she exchanged Facebook messages

with Dalmida describing the incident shortly after it occurred.

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

6

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.2

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.3 At one point

2

At trial, however, J.B. identified several Government

exhibits as photos she had sent to Button’s Facebook account

or the 998 number.

3

Dalmida testified that she never had Browne’s phone

in her possession, and Special Agent Blyden testified that

during the investigation Dalmida denied ever receiving a

phone from Browne.

7

during his testimony, he confirmed he owned a second phone

and number (“the 344 number”).

Browne was convicted by a jury after a two-day trial.4

He now appeals his conviction on the ground that the

Facebook records were not properly authenticated and should

not have been admitted into evidence.

II. Jurisdiction

4

The jury convicted Browne on twelve counts,

including the production of child pornography in violation of

18 U.S.C. § 2251(a) (Counts 1–4); the coercion and

enticement of a minor to engage in sexual activity in violation

of 18 U.S.C. § 2422(b) (Count 8); the receipt of child

pornography in violation of 18 U.S.C. § 2252(a)(2) (Counts

9–12); and the transfer of obscene material to minors under

age 16, in violation of 18 U.S.C. § 1470 (Count 17, 19–20).

The jury acquitted Browne on three counts for coercion and

enticement, in violation of 18 U.S.C. § 2422(b) (Counts 5–7),

and on the count of aggravated first degree rape in violation

of 14 V.I.C. § 1700(c) (Count 22). Before the jury rendered

its verdict, the defense successfully moved to dismiss a

charge of extortion using interstate commerce, in violation of

18 U.S.C. 875(d) (Count 21), and the Government

successfully moved to dismiss one of the counts for the

transfer of obscene material to minors under age 16 (Count

18) and all charges for possession of child pornography under

18 U.S.C. 2252(a)(4)(B) (Counts 13–16) in light of the fact

that possessing child pornography is a lesser-included offense

of the receipt of child pornography, United States v. Miller,

527 F.3d 54, 71–72 (3d Cir. 2008).

8

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).

III. Discussion

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

9

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.

A. Self-authentication

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 certain

documents that bear sufficient indicia of reliability as to be

“self-authenticating.” Specifically, the Government relies on

Rule 902(11), which provides that “records of a regularly

conducted activity” that fall into the hearsay exception under

Rule 803(6)—more commonly known as the “business

records exception”—may be authenticated by way of a

certificate from the records custodian, as long as the

proponent of the evidence gives the adverse party reasonable

10

notice and makes the record and certificate available for

inspection in advance of trial. Fed. R. Evid. 902(11).5

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

5

Rule 803(6) allows for the admission of “[a] record

of an act, event, condition, opinion, or diagnosis” containing

hearsay if: “(A) the record was made at or near the time by—

or from information transmitted by—someone with

knowledge; (B) the record was kept in the course of a

regularly conducted activity of a business, organization,

occupation, or calling, whether or not for profit; (C) making

the record was a regular practice of that activity; (D) all these

conditions are shown by the testimony of the custodian or

another qualified witness, or by a certification that complies

with Rule 902(11) or (12) or with a statute permitting

certification; and (E) the opponent does not show that the

source of information or the method or circumstances of

preparation indicate a lack of trustworthiness.” Fed. R. Evid.

803(6). Rule 902(11), in turn, was adopted by amendment in

2000 to allow records of regularly conducted activity to be

authenticated by certificate rather than by live testimony and

provides that the proponent of a business record who meets

certain notice requirements need not provide extrinsic

evidence of authentication if the record meets the

requirements of Rule 803(6)(A) through (C) “as shown by a

certification of the custodian or another qualified person,”

Fed. R. Evid. 902(11); see Fed. R. Evid. 902 advisory

committee’s note (2000).

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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)[01] at 901–15 (1993)).6 Rule 104(b), in turn,

provides that “[w]hen the relevance of evidence depends on

whether a fact exists, proof must be introduced sufficient to

support a finding that the fact does exist.” Fed. R. Evid.

6

Put differently, “[a]uthenticity is elemental to

relevance.” Rawlins, 606 F.3d at 82; see Fed. R. Evid. 901(a)

advisory committee’s note (1972) (“This requirement of

showing authenticity or identity [under Rule 901(a)] falls in

the category of relevancy dependent upon fulfillment of a

condition of fact and is governed by the procedure set forth in

Rule 104(b).”).

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104(b). We have determined that to meet the Rule 104(b)

standard of sufficiency, the proponent of the evidence must

show that “the jury could reasonably find th[ose] facts . . . by

a preponderance of the evidence.” United States v. Bergrin,

682 F.3d 261, 278 (3d Cir. 2012) (quoting Huddleston v.

United States, 485 U.S. 681, 690 (1998)) (alterations in

original); see also United States v. Khorozian, 333 F.3d 498,

506 (3d Cir. 2003) (“Authentication does not conclusively

establish the genuineness of an item; it is a foundation that a

jury may reject.”).

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,

13

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.7 See E. C. Ernst, Inc. v. Koppers Co., 626 F.2d

324, 330–31 (3d Cir. 1980) (holding that pricing sheets

satisfied Rule 803(6) because, among other things, “the sheets

were checked for accuracy”); see also United States v. Gurr,

471 F.3d 144, 152 (D.C. Cir. 2006) (“Because the regularity

of making the record is evidence of its accuracy, statements

by ‘outsiders’ are not admissible for their truth under Fed. R.

Evid. 803(6).”); Fed. R. Evid. 803 advisory committee’s note

(1972) (“The element of unusual reliability of business

records is said variously to be supplied by systematic

checking, by regularity and continuity which produce habits

7

When we stated in United States v. Console that

“Rule 803(6) does not require that the person transmitting the

recorded information be under a business duty to provide

accurate information,” 13 F.3d 641, 657 (3d Cir. 1993), we

were observing that accuracy need not be guaranteed, but in

no way suggested that accuracy is irrelevant. On the

contrary, we went on to state: “[I]t is sufficient if it is shown

that . . . [the] standard practice was to verify the information

provided, or that the information transmitted met the

requirements of another hearsay exception.” Id. at 657–58

(citations omitted) (alterations in original) (emphasis added).

14

of precision, by actual experience of business in relying upon

them, or by a duty to make an accurate record as part of a

continuing job or occupation.”).

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 over that

platform, that is, confirmation that the depicted

communications took place between certain Facebook

accounts, on particular dates, or at particular times. This is no

more sufficient to confirm the accuracy or reliability of the

contents of the Facebook chats than a postal receipt would be

to attest to the accuracy or reliability of the contents of the

enclosed mailed letter. See United States v. Jackson, 208

F.3d 633, 637–38 (7th Cir. 2000) (holding that Internet

Service Providers’ ability to retrieve information that their

customers posted online did not turn the posts that appeared

on the website of a white supremacist group into the ISP’s

business records under Rule 803(6)); cf. In re U.S. for

Historical Cell Site Data, 724 F.3d 600, 611 (5th Cir. 2013)

(for Fourth Amendment purposes, defining business records

as “records of transactions to which the record-keeper is a

party,” in contradistinction to “[c]ommunications content,

such as the contents of letters, phone calls, and emails, which

are not directed to a business, but simply sent via that

business”).

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

15

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.

16

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. See Fed. R. Evid. 901(b). In United States v.

McGlory, 968 F.2d 309 (3d Cir. 1992), for example, we

rejected a defendant’s challenge to the authentication of notes

that he had allegedly handwritten because, despite being

unable to fully establish authorship through a handwriting

expert, the prosecution had provided “sufficient evidence

from which the jury could find that [the defendant] authored

the notes.” Id. at 329. The notes had been seized from the

trash outside the defendant’s known residences; some of the

notes were torn from a notebook found inside his residences;

some notes were found in the same garbage bag as other

identifying information; and certain notes were written on

note paper from hotels where the defendant stayed during the

alleged conspiracy. Id. at 328–29.

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

17

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,

19 A.3d 415, 424 (Md. 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

18

falsified, the existing [rules] provide an appropriate

framework for determining admissibility.”); Burgess v. State,

742 S.E.2d 464, 467 (Ga. 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 same conclusion. In United States v.

Barnes, 803 F.3d 209 (5th Cir. 2015), the Fifth Circuit held

that the government laid a sufficient foundation to support the

admission of the defendant’s Facebook messages under Rule

901 where a witness testified that she had seen the defendant

using Facebook and that she recognized his Facebook account

as well as his style of communicating as reflected in the

disputed messages. Id. at 217. In United States v. Hassan,

742 F.3d 104 (4th Cir. 2014), the Fourth Circuit held that the

government properly linked the Facebook pages at issue to

the defendants by using internet protocol addresses to trace

the Facebook pages and accounts to the defendants’ mailing

and email addresses.8 Id. at 133. And in Vayner, the Second

8

The Fourth Circuit also ruled that those Facebook

pages were properly authenticated under Rule 902(11).

Hassan, 742 F.3d at 133–34. For the reasons already stated

19

Circuit held that the government failed to adequately

authenticate what it alleged was a printout of the defendant’s

profile page from a Russian social networking site where it

offered no evidence to show that the defendant had created

the page. 769 F.3d at 131. In all of these cases, the courts

considered a variety of extrinsic evidence to determine

whether the government had met its authentication burden

under Rule 901—each reiterating, in the course of that

analysis, that conclusive proof of authenticity is not required

and that the jury, not the court, is the ultimate arbiter of

whether an item of evidence is what its proponent claims it to

be. Barnes, 803 F.3d at 217; Vayner, 769 F.3d at 131;

Hassan, 742 F.3d at 133.

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

above, we do not agree with this portion of the court’s

authentication holding.

20

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 that screenname used in disputed text messages

belonged to him). Browne also testified that he owned the

phone that was seized from his residence—the same phone

from which DHS recovered certain images that the victims

identified on the stand as those they sent in response to

commands from either the Button or Dalmida Facebook

account or the 998 number. Cf. United States v. Simpson, 152

F.3d 1241, 1249–50 (10th Cir. 1998) (rejecting the

defendant’s claim that the trial court erred in admitting a

printout of an alleged chat room discussion between the

defendant and an undercover officer where, among other

things, the pages seized from the defendant’s home contained

21

identifying information that the undercover officer had given

the individual in the chat room). And Browne admitted that

he owned a second phone with the 344 number, which is

significant because, although Browne attempted to distance

himself from the incriminating phone with the 998 number

with the unsupported contention that he loaned it to other

individuals at various points in the relevant time period, one

of the challenged Facebook conversations shows that

“Button” also provided the 344 number to minor J.S. on two

occasions while trying to elicit sexual acts and photos. In

addition, in Browne’s post-arrest statements, which were

introduced at trial, he provided the passwords to the Button

Facebook account and to the phone with the 998 number and

admitted to exchanging nude photos with Dalmida, paying

J.S. for nude photos, going to J.B.’s home, and knowing a

third minor, T.P., whom he referenced by Facebook account

name.

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

22

disputed Facebook chats, Button informed a minor that his

name was “Tony . . . Browne.”9 App. 519.

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 screenshots, the method by which the

Government procured the records in this case constitutes yet

more circumstantial evidence that the records are what the

Government claims.

9

Browne argues that none of these biographical details

constituted “information that only [he] could be expected to

know,” Appellant’s Br. at 19, but we need not determine that,

by itself, the information could suffice to authenticate the chat

logs to conclude that they have some authentication value

when considered in combination with all of the other

available evidence. See Simpson, 152 F.3d at 1244 (computer

printout of alleged chat room discussions properly

authenticated not only by physical evidence recovered from

defendant’s home but also in light of the fact that the

individual participating in the chat gave the undercover

officer the defendant’s first initial and last name and street

address); Bloom v. Com., 554 S.E.2d 84, 86–87 (Va. 2001)

(defendant was sufficiently identified as individual who made

statements over instant message where detailed biographical

information provided online matched that of the defendant).

23

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

24

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.

C. Admissibility

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

25

authorship by a preponderance of the evidence); see also

United States v. Brinson, 772 F.3d 1314, 1320 (10th Cir.

2014) (same conclusion regarding Facebook messages);

United States v. Siddiqui, 235 F.3d 1318, 1323 (11th Cir.

2000) (same conclusion regarding authenticated email).10

Not so for the fifth.

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

10

As for the statements in the chat logs that the victims

made to Browne, under our precedent they were not hearsay

because they were not offered into evidence to prove the truth

of the matter asserted; rather, they were introduced to put

Browne’s statements “into perspective and make them

intelligible to the jury and recognizable as admissions.”

United States v. Hendricks, 395 F.3d 173, 184 (3d Cir. 2005)

(quoting United States v. McDowell, 918 F.2d 1004, 1007 (1st

Cir. 1990)); see also McDowell, 918 F.2d at 1007–08 (“[The

defendant’s] part of the conversations was plainly not

hearsay. Nor can a defendant, having made admissions, keep

from the jury other segments of the discussion reasonably

required to place those admissions into context . . . .

Moreover, because [the informant’s] statements were

introduced only to establish that they were uttered and to give

context to what [the defendant] was saying, they were not

hearsay at all.”).

26

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.”).11

11

As with authentication, we do not foreclose the

possibility that the chat log might have warranted a different

hearsay analysis had the Government sought the admission of

only limited portions of it. In United States v. Turner, 718

F.3d 226 (3d Cir. 2013), for example, where we assessed the

admissibility of certain bank records, we held that the district

court did not clearly err in applying the residual hearsay

exception, which permits a district court to admit an out-of-

court statement not covered by Rules 803 or 804 where,

among other things, “the statement has equivalent

circumstantial guarantees of trustworthiness.” Id. at 233

(quoting Fed. R. Evid. 807). But the Government here does

not contend that this hearsay exception or any others

enumerated in Rule 803 are applicable to this chat log. And

with good reason. For instance, although the log reflects that

the chat participants made a number of emotionally charged

statements, it purports to describe an event that occurred the

previous day and thus was not admissible under the present

sense impression or excited utterance exception to the hearsay

rule. Fed. R. Evid. 803(1)–(2); see United States v. Green,

556 F.3d 151, 156 (3d Cir. 2009); United States v. Brown,

254 F.3d 454, 458 (3d Cir. 2001). And nothing in the record

or the Government’s brief suggests the chat log was

introduced to show Dalmida or J.B.’s “then-existing state of

27

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 set forth abundant evidence

that not only served to tie Browne and the victims to the chat

logs but also supported Browne’s guilt on all of the counts for

which he was convicted irrespective of those records. Indeed,

the two individuals who made the hearsay statements

reflected in the fifth chat log, Dalmida and J.B., testified at

length to the very details included in that Facebook chat log.

Because there was overwhelming, properly admitted evidence

supporting Browne’s conviction on every count, and the sole

improperly admitted Facebook record was “at most,

duplicative of [the witnesses’] admissible testimony,” United

States v. Kapp, 781 F.2d 1008, 1014 (3d Cir. 1986), the

erroneous admission was harmless and Browne’s convictions

must be sustained. See Barnes, 803 F.3d at 218 (concluding

that any potential error in admitting disputed Facebook

messages was harmless, as “the content of the messages was

mind,” Fed. R. Evid. 803(3). See United States v. Donley,

878 F.2d 735, 737 (3d Cir. 1989).

28

largely duplicative” of witness testimony and “given the

overwhelming evidence of [the defendant’s] guilt”).

* * *

For the foregoing reasons, we will affirm the judgment

of the District Court.

29