What You Say on Facebook May be Used Against You

Originally published by John Floyd.

Whether or not Larry Recio on May 15, 2015 possessed a firearm was until March 8, 2018 an issue of contention. The contentious issue was resolved that day when the Fourth Circuit Court of Appeals upheld Recio’s “a felon in possession of a firearm” conviction.

 

On that May 2015 day, two Prince George County, Maryland police officers, Shane Pumphrey and Christopher Rothenberger, spotted Recio while they were on patrol. Knowing he had outstanding arrest warrants, they observed him at which time they saw a gun protruding from his waistband. Recio bolted as the officers approached. They gave chase—one in the vehicle, the other on foot.

 

Suspect Gets Away, Cops Find Discarded Firearm

 

During the chase, one of the officers saw Recio toss the weapon. The suspect managed to get away. The officers found the loaded weapon he had discarded. Recio was subsequently arrested the following month.

 

The government indicted Recio on August 17, 2015 for being a felon in possession of a firearm.

 

Defense Moves to Exclude Facebook Post

 

In a pretrial maneuver, the government filed an in limine motion for admission of statements to use a post they believed Recio had put up on his Facebook page.  Under Federal Rule of Evidence 801(d)(2), allows admission of certain kinds of statements by an opposing party as an exception to the hearsay rule. The post read:

 

“It’s Always Tucked, Kuz I’ll B Damn If My Life Get Took!!”

 

The post mimic lyrics from a rap song Get it in Blood by Bloody Jay. The rapper’s lyrics are, “it’s always tucked, cause I’ll be damned if I get my life took.”

 

The trial court conducted a hearing to determine if the government could use Recio’s Facebook post, a quasi-admission of guilt, at trial. The court had to consider two issues: whether the Facebook post was authentic and whether it constituted inadmissible character evidence through “other acts” barred under Rule 404(b). The next day the court granted the government’s motion to use the Facebook post.

 

Jury Deadlocked

 

During its deliberations, the jury sent four notes to the judge, indicating it was having some difficulty reaching a unanimous verdict. The fourth note told the judge, “we have given every effort, and regret that we are unable to come to a unanimous verdict.”

 

The judge instructed the jury to take a break through the night and return the next morning to continue its deliberation. The next morning the jury sent the judge a fifth note requesting to see the weapon and its ammunition. The jury’s sixth note to the judge informed the court it had reached unanimous guilty verdict.

 

The jury obviously had serious reservations about the two officers’ version of the events about what transpired on May 15, 2015. At the end of the day, it is more than reasonable to assume that Recio’s own Facebook post about “it’s always tucked” erased the jurors’ doubts about Recio possessing the firearm. The Facebook post effectively told the jury that he “always” carried a gun.

 

Court Says Lyrics Posted on Facebook are Probative

 

The Fourth Circuit reasoned that by editorializing lyrics from Bloody Jay’s rap song about always carrying a weapon, Recio had adopted the song’s lyrics as his own. The appeals court added:

 

“Lyrics posted [on Facebook] or authored by a defendant can be relevant if they match details of the alleged crime. That is so because the fact that a defendant posted lyrics about engaging in certain conduct makes it more probable that the defendant in fact engaged in that conduct.”

 

Whatever the motive Recio had for making the Facebook post is immaterial, the post itself was clearly damaging to his case because, as a convicted felon, he appeared to claim he was “always” in violation of law because he “always” kept a gun “tucked.”

 

Rap Recordings Used in Prosecutions

 

The Fourth Circuit also pointed to Eighth and Seventh Circuit decisions that found a defendant’s rap recordings about dealing drugs could be used against him at a drug trial.

 

Individuals involved in criminal activity should be forewarned that law enforcement and prosecutors often turn to social media vehicles, such as Facebook, to find evidence of criminal guilt or evidence that be used at punishment.  In short, don’t post evidence of possible criminal activity on social media.

 

It may seem bold to tell the world you always keep it tucked, but it comes across as pretty stupid if you ever have to appear before a jury for illegally having it tucked.

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