UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA ) ) ) v. ) Criminal Case No. 17-184 (RJL) ) ) ALLAN JAMES, ) ) Defendant. )

-h., MEMORANDUM OPINION (June / ?, 2019)

Defendant Allan James ("James") pleaded guilty m this case to one count of

unlawfully possessing a firearm and ammunition after being convicted of a crime

punishable by imprisonment for a term exceeding one year. See

(g)(l ).

He currently awaits sentencing and has objected to the Sentencing Guidelines range

calculation that appears in his Presentence Investigation Report ("PSR"). The calculation

in the PSR is based, in part, on conduct that was not alleged in James's indictment and that

is evidenced only by social media posts and testimony about social media posts. See PSR

,i,i 1Oa-1 Og [Dkt. # 18]. Indeed, James' s Guidelines range quadrupled as a result of its

inclusion. James argues that this social media evidence is not sufficiently reliable to be

used as a basis for enhancing his Sentencing Guidelines range. I agree, and his objection ·

will therefore be SUSTAINED. BACKGROUND The United States ("the Government") indict.ed James in October 2017 for a single

count of violating

(g)(l). See Indictment at 1 [Dkt. # 5]. The one-count

indictment refers in turn to a single firearm-a Glock 22 .40 caliber pistol-and alleges

that James possessed the gun, along with some .40 caliber ammunition, on or about July

12, 2017. See

James, as is his right, pleaded guilty to the conduct charged in the

indictment without first negotiating a plea deal with the Government. His Sentencing

Guidelines range, if calculated based on the conduct described in the indictment, provides

for twenty-one to twenty-seven months of incarceration. See Draft PSR ii 6-10, 7 5 n.4

[Dkt. # 17]. That Guidelines range was reflected in the draft PSR prepared by the United

States Probation Office ("Probation"). See

After reviewing the draft PSR, the Government argued that James' s Guidelines

range should be significantly enhanced as a result of certain social media posts, most of

which were recovered by executing search warrants for Facebook and Snapchat accounts.

In particular, the Government contended that James' s base offense level should be

increased from fourteen to twenty because these social media posts involved a

semiautomatic firearm capable of accepting a large capacity magazme, see U.S.S.G.

§ 2K2.l(a)(4)(B); that James should be given an additional four-point enhancement

because the posts linked him to at least eight firearms, 1 see U.S.S.G. § 2K2.1 (b )( 1)(B); and

finally that James should be given another four~point enhancement because he trafficked

1 Alternatively, the Government contends that the social media evidence links James to between three and seven firearms, which would warrant a two-point enhanc-ement to his offense level. See U.S.S.G. § 2K2.l (b )(1 )(A).

2 firearms, see U.S.S.G. § 2k2.l(b)(5). According to the Government, images, videos, and

messages posted to the social media accounts between January 2016 and June 2017 show

James in possession of and, in some cases, trying to sell firearms. Ultimately, Probation

adopted the Government's position in its final PSR, increasing James's Guidelines range

to eighty-four to one hundred and five months of incarceration. See PSR i1 7 5.

James, of course, strongly objects to this fourfold increase in his Guidelines range.

The parties have filed memoranda setting forth their positions on the correct Guidelines

range calculation, and the Government has been given multiple opportunities to identify

all evidence that supports the calculation in the final PSR. 2 James's objection is now ripe

for resolution. 3

ANALYSIS·

Courts are naturally wary when prosecutors seek substantial sentencing

enhancements based on conduct the same prosecutors declined to charge. Indeed, judges

have "note[ d] ... continuing disagreement with the government's practice of charging

relatively minor crimes, while using ... 'relevant [uncharged] conduct' ... to argue for

2 To resolve James's objection, the Cowi has considered the PSR, the Government's Memorandum in Aid of Sentencing ("Gov't Sentencing Mem.") [Dkt. # 22], James's Memorandum in Aid of Sentencing [Dkt. # 23], the Government's Notice of Change in Position [Dkt. # 25], the Government's Status Repo1i on Potential Expeti Witness [Dkt. # 29], the parties' Joint Status Repoti as to Sentencing [Dkt. # 30], the Government's Supplemental Guidelines Calculation [Dkt. # 33], James's Response to the Government's Sentencing Supplement [0kt. # 34], the Government's Supplemental Memorandum in Aid of Sentencing ("Gov't Suppl. Sentencing Mem.") [Dkt. # 38], James's second Response to the Government's Sentencing Supplement [Dkt. # 40], and oral argumenffrom the pa1iies at hearings held on July 6, 2018, February 25, 2019, and March 18, 2019. 3 Given the argument, briefing, affidavits, and expeti repo1is before the Couti, it is not necessary to hold an evidentiary hearing to resolve James's objection. See U.S.S.G. § 6A 1.3, cmt. ("Written statements of counsel or affidavits of witnesses may be adequate [to resolve disputes about sentencing factors] under many circumstances.").

3 significantly enhanced terms of imprisonment." United States v. Magee,

(1st Cir. 2016) (Torruella, J., concurring)(quoting U.S.S.G. § 1Bl.3(a)); see United States I .

v. Scheiblich,

(S.D. Ohio 2018) (citing cases in which

judges express skepticism about this practice). One Court of Appeals 'has even gone so far

as to expressly and repeatedly "rernind prosecutors -·not to indict defendants on relatively

minor offenses and then seek enhancement sentences later by asserting that the defendant

has committed other mor~ serious crimes for which, for whatever reason, the defendant

was not prosecuted and has not been convicted. "' 4 United States v. Spiller, 261 F .3 d 683,

691 (7th Cir. 2001) (quoting United States v. Bacallao,

(7th Cir. 1998)).

This judicial skepticism is, of course, rooted in the defendant's constitutionally

protected rights. After all, by asking "judges to rely on acquitted or uncharged conduct to

impose higher sentences than they otherwise would impose," prosecutors adopt a strategy

that "seems a dubious infringement of the rights to due process and to a jury trial." United

. States v. Bell,

(D.C. Cir. 2015) (Kavanaugh, J., concurring with denial

of petition for rehearing en bane). To say the least, "trial by sentencing enhancements"

was not what_ Congress had in mind when it blessed the federal Sentencing Guidelines

regime!

But concerns about this practice extend beyond outright violations of the

Constitution. "Many judges and commentators" who have questioned prosecutors' zeal to

punish defendants for conduct that has never resulted in a conviction argue that the use of

4 See also United States v. Jordan,

(table),

, at *3 n.4 (7th Cir. 2000); United States v. Fischer,

(7th Cir. 1990).

4 uncharged or "acquitted conduct to increase a defendant's sentence undermines respect for

the law and the jury system." United States v. Settles,

(D;C. Cir. 2008).

Our Circuit Court has specifically acknowledged that it "understand[ s] why defendants

find it unfair for district courts to rely on" such conduct at sentencing-even while

reiterating that "long-standing precedents of the Supreme Court and [the Circuit] Court"

often allow it. 5

. And so it seems obvious, as pointed out by Judge, now Justice,

Kavanaugh, that "district judges would" be wise "to heed ... concern[s ]" about unfairness

and, "in appropriate cases," to "avoid basing any part of [a defendant's] ultimate sentence

on acquitted or uncharged conduct." Bell,

(Kavanaugh, J., concurring with

denial of petition for rehearing en bane); see also

("[F]ederal district judges have power

in individual cases to disclaim reliance on acquitted or uncharged conduct" by "vary[ing]

the sentence downward to avoid basing any part of the ultimate sentence on acquitted or

uncharged conduct."); Settles,

("[E]ven though district judges are not

required to discount acquitted conduct, the Booker-Rita-Kilnbrough-Gall line of cases may

allow district judges to discount acquitted conduct in particular cases .... " ( citing

Kimbrough v. United States,

(2007)) (emphasis in original)).

Moreover, the Government's requested sentence in this particular case deserves

considerable scrutiny because its use of uncharged conduct is compounded by the

5 Facts, other than the fact of a prior conviction, that increase a statutorily imposed maximum penalty or mandatory minimum penalty must be proven beyond a reasonable doubt to a jury. See Alleyne v. United States,

(2013); Apprendi 1i. New Jersey,

(2000). But so long as conduct does not alter the statutorily mandated sentencing range and the "conduct has been proved by a preponderance of the evidence," a sentencing cou1i "may co11sider uncharged or even acquitted conduct in calculating an appropriate sentence." Settles, 530 F.3d at923.

5 weakness of the evidence it offers to prove the conduct. To say the least, social media

posts-.with little else-can hardly justify the quadrupling of a defendant's Guidelines

range. How so?

Courts, and commentators, have explained why determining the accuracy of

information posted to social media is far from straightforward and hence of questionable

reliability. Facebook records, for example, are "no more sufficient to confirm the accuracy

or reliability of' information posted to the website "than a postal receipt would be to attest

to the accuracy or reliability of the contents of the enclosed mailed letter." United States

v. Browne,

(3d Cir. 2016). Indeed, Facebook can actually make

photographic evidence less useful because it "'strips ... metadata as the photograph is

uploaded' ... rendering [its] date of creation unknown." United States v. Farrad,

(6th Cir. 2018) (quoting testimony from a police officer trained in social media

investigations). Snapchat is similarly problematic as some of its "key function[ s]" give

users the ability to edit images before sharing them. Agnieszka McPeak, Disappearing

Data, 2018 Wrs. L. REV. 17, 34 (2018) ("A key function within Snapchat is the use of

Filters, which allows users to add multiple overlays to their images. Lenses also allow

'real-time special effects and sounds' to be added to images." (footnote omitted)). Even

determining who posted a particular message, imag~, or video to Facebook or Snapchat is

difficult "because of the great ease with which a social media account may be falsified or

a legitimate account may be accessed by an imposter." Browne, 834 F .3d at 412. For these

reasons, courts usually "consider[] . . . extrinsic evidence to determine whether the

6 government [can meet] its authentication burden" before permitting the introduction of

social media evidence against a defendant at trial. Id. at 413.

Not surprisingly, the reliability standard applicable at sentencings, see U.S.S.G.

§ 6Al.3(a), 6 counsels in favor of requiring extrinsic corroboration before social media

evidence is used to resolve a dispute relevant to a sentencing determination. Because social

media posts may contain false information and doctored images, and because posters may

be using hacked accounts or stolen identities, uncorroborated social media posts will not

often establish, with any degree of reliability, that the information in the posts is accurate

or that the posts are what they purport to be.

The Government here has not offered sufficient extrinsic corroboration to establish

the necessary reliability of its social media evidence. While it has pointed to reasons to

believe James had access to the Facebook and Snapchat accounts from which it collected

evidence, see Declaration of Special Agent Robert Mayo ("Mayo Deel.") at 22 [Dkt. # 3 8-

1] (reporting that photos found on James' s cell phone had been uploaded to the social media

accounts), account access, alone, cannot possibly justify the sentence enhancements the

Government requests here due to the myriad of facts the Government would need to

establish in order to render these photos sufficiently reliable.

For example, the Government would need to establish that the alleged firearms

depicted in the social media pictures and videos are actual firearms. See 18 U.S.C.

§ 92l(a)(3); U.S.S.G. § 2K2.1 cmt. n.l (defining "[f]irearm" to "ha[ve] the meaning given

6 At sentencing, "information [must] ha[ve] sufficient indicia ofreliability to suppot1 its probable accuracy," if it is to be used to resolve a dispute between the pa11ies. In re Sealed Case,

, 699- 700 (D.C. Cir. 2001) (quoting U.S.S.G. § 6Al.3).

7 that term in 18 U.S.C. § 92l(a)(3)"). However, assuming those photos and videos have

not been doctored, the Government's own firearms expert here concedes, "it is not possible

to determine if an object depicted in a photograph or video is a functional firearm, a replica

firearm, or a toy firearm." Mayo Deel. App. A, Laboratory Report of Bryce A. Ziegler

("Ziegler Report") at 4.

In addition, the Government would need to establish that the pictures and videos

posted to social media were created around the same time they were uploaded to

substantiate its argument that the social media evidence depicts a single, year-and-a-half-

long course of conduct or common scheme. See Gov't Sentencing Mem. at 24 (arguing

that the social media evidence depicts a single course of conduct or common scheme

because James allegedly "possessed between eight and 24 firearms over [a] year-and-a-

half period"); United States v. Mahone, 688 F .3d 907, 909 (8th Cir. 2012) ("At least four

of our sister circuits have concluded that a defendant's pattern of unlawfully possessing

multiple firearms over the course of several months constitutes 'the same course of

conduct' for relevant conduct purposes." ( emphasis added)). But when the Government

seized and searched James' s cell phone, these allegedly inculpatory pictures and videos

could not be found, see Mayo Deel. at 22-23, and, to date, none appear to have been

analyzed for a date of creation. To say the least, the Government's theory that James

possessed multiple weapons over a year-and-a-half period falls apart if its social media

evidence consists of pictures and videos that were years old when uploaded. See Farrad,

(explaining why evidence from Facebook cannot establish the date a

photograph was taken).

8 Moreover,· the Government would also need to establish that James actually

possessed the weapons depicted in the images and videos. This is especially so when you

consider that several of these social media posts depict only apparent firearms, without

showing any individual, let alone James, present. See Mayo Deel. at 12-13. To say the

least, an image of a firearm alone does not establish that the photographer, videographer,

or person who uploaded the image to social media ever owned or possessed the depicted

firearm. See United States v. Winters,

, 395 (5th Cir. 2013) ("A

photograph's appearance on a personal webpage does not by itself establish that the owner

of the page possessed or controlled the items pictured.").

Finally, the Government would need to establish that the images and videos that do

include James' s image have not been doctored to give the illusion that James possessed

firearms he never actually had. See United States v. Frabizio,

, 15 8

(D. Mass. 2006) ("[T]he government has not made the threshold showing that a visual

observer can reliably evaluate the relevant pictures for signs of manipulation and computer-

generation. Rather, the evidence strongly suggests that it is extremely difficult, if not

impossible, for a photographic expert, let alone a lay observer, to determine whether the

images involved in the instant case are real images or images created or manipulated

through digital technology."), clarified on reconsideration,

(D. Mass.

2006). Unfortunately, the Government offers no testimony that could assist the Court in

distinguishing between images and video that have been virtually created or altered and

images and video that were recorded on a camera and never later manipulated.

9 In the final analysis, the Government contends that its interpretation of the photos

and videos is bolstered by messages and captions that were posted to the same social media

accounts as the images. See, e.g., Gov't Sentencing Mem. at 28 ("The defendant received

at least the MAC-I 0-style gun, the AR-15-style rifle, and the distinctive white pistol in the

'Back on Dat Action' video with the intent to sell them to other people, as evidenced by

his Facebook discussion of pricing."). But introducing statements posted to social media

requires still more antecedent proof: The Government must establish that James authored

the statements being attributed to him. Doing so here is difficult because the Government

did not thoroughly investigate whether any individuals other than James had access to

James' s cell phone or social media accounts. See Status Hr' g Tr. at 13: 10-15 :7 (Mar. 18,

2019) [Dkt. # 36]; Gov't Suppl. Sentencing Mem. at 2 n.2.

At bottom, the social media posts that the Government counts as evidence of

James' s "possession of the eleven firearms," with intent to traffic three, as "part of ... a

common scheme or plan," Gov't Sentencing Mem. at 24, 28, are just as consistent with the

possibility that a person with access to James' s social media accounts wanted viewers to

incorrectly think James had and could sell 7 firearms. Within the world of social media, the

latter possibility is no less conceivable than the former. See Farrad, 895 F .3d at 874

("[P]eople advertise false images of themselves all the time-putting signs on their doors

suggesting that they have a fancy. alarm system, a fierce guard dog, or a high-powered

firearm that they do not in fact have. The Facebook poseur['s] ... incentive is not

7 None of the social media messages that the Government offers as evidence of James's intent to traffic firearms suggest that James ever finalized an agreement to sell any firearm. See Gov't Sentencing Mem. at 9, 12. Nor does the Govei'nment contend that any sale was consummated. See id. at 28.

10 necessarily to show a real gun, which is costlier, harder to procure, and, needless to say,

more·likely to subject its owner to criminal liability."). This potential for digital deception

is precisely why courts require extrinsic corroboration before crediting social 1nedia

evidence. See United States v. Vayner,

(2d Cir. 2014} (holding that

a printout from a social media profile should not have been admitted at trial when "the

information contained on the [profile] allegedly tying [it] to [the defendant] was also

known by ... others, some of whom may have had reasons to create a profile page falsely

attributed to the defendant" and the profile was not otherwise corroborated). And

persuasive, extrinsic corroboration is what the Government lacks here. Only one firearm

was ever found on James or at his residence. 8 The other alleged firearms shown on social

media could have been stored outside of James' s residence, given away, thrown out, or

sold-or the social media posts offered by the Government could depict toys, replicas, or

digital creations.· Neither the posts themselves, nor any witness offered by the Government,

reliably establishes one or the other.

Moreover, the Government offers no legal authority that suggests its uncorroborated

social media posts are sufficiently reliable to enhance James' s sentence. The Government

merely points to three out-of-circuit, unpublished, nonprecedential opinions in which

sentencing enhancements based in part on digital images were upheld on clear error review.

See Gov't Suppl. Sentencing Mem. at 4 (citing United States v. Villanueva,

(11th Cir. 2009) (per curiam); United States v. Spencer,

,

8 The Government did recover ammunition when it executed a search warrant at James's residence. See Mayo Deel. at 22. The recovered ammunition is the same caliber as the firearm and ammunition referred to in James' s indictment. See Indictment at 1.

11 867 (11th Cir. 2017) (per curiam); United States v. Weigant,

(11th

Cir. 2011) (per curiam)). Unfortunately for the Government, none of the three opinions

addresses the fundamental problem with the Government's evidence here-the lack of

offline, or otherwise reliable, corroboration. In two of the Government's cited cases, the

District Court heard testimony that the firearms depicted in the digital evidence offered at

sentencing were real. See Villanueva, 315 F.. App'x at 849; Weigant,

.

Here, the Government submitted a report from a firearms examiner who cannot even

determine whether the apparent firearms are real or not. See Ziegler Report at 4. The

Government's third case does not deal with social media evidence at all. In United States

v. Spencer, a District Court relied on photographs that, unlike here, were recovered from

the defendant's cell phone and that, unlike here, were sufficiently clear to identify specific

makes and manufacturers of depicted firearms. See

. By comparison,

the Government's expert in this case cautions, (,·Due to poor image quality or a lack of

observable physical characteristics, it may not be possible to determine a specific model or

manufacturer of a potential firearm" from the offered social media posts. Ziegler Report

at 4. Not exactly comforting that!

In short, the Government points to cases in which digital evidence was deemed

reliable after it was corroborated through testimony less equivocal than what is offered

here or through comparisons to functional firearms more detailed than are possible here.

Where prosecutors can bolster social media evidence in a way that establishes "sufficient

indicia of reliability to support its probable accuracy," In re Sealed Case, 246 F .3d at 700

(quoting U.S.S.G. § 6Al .3), social media posts may well be an appropriate basis on which

12 to resolve disputes at sentencing. But the Government's submiss!ons in this case make

clear that it cannot clear that hurdle. Its proposed witnesses offer little by way of extrinsic

corroboration for the social media posts allegedly establishing James 's possession and

trafficking of multiple firearms and possession of a semiautomatic firearm capable of

accepting a large capacity magazine. The Government will not, therefore, be permitted to

rely on its social media evidence at James's sentencing to modify in any way the initial

Ciuidelines calculation of the Probc1tion Office.

CONCLUSION

James's objection to the use of the Government ' s social media evidence in

calculating his Sentencing Guidelines range will be SUSTAINED. The sentencing hearing

in this case remains set for June 18, 2019 , and the applicable Guidelines range will be

twenty-one to twenty-seven months of imprisonrnent.

~QJI .. _/ RICHARDJ. ~ United States District Judge

13