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United States v. Recio

United States Court of Appeals, Fourth Circuit

March 7, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
LARRY MILAN RECIO, Defendant-Appellant.

          Argued: January 24, 2018

         Appeal from the United States District Court for the District of Maryland, at Greenbelt. George Jarrod Hazel, District Judge. (8:15-cr-00448-GJH-1)

         ARGUED:

          Lesley Whitcomb Fierst, CAPITAL ONE, Tysons Corner, Virginia, for Appellant.

          Francesca Anne Liquori, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

         ON BRIEF:

          James Wyda, Federal Public Defender, Baltimore, Maryland, Sapna Mirchandani, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant.

          Stephen M. Schenning, Acting United States Attorney, Baltimore, Maryland, David I. Salem, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

          Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

          DIANA GRIBBON MOTZ, CIRCUIT JUDGE.

         A jury found Larry Recio guilty of being a felon in possession of a firearm. At trial, over his objection, the district court admitted into evidence a post assertedly to Recio's Facebook account that quoted a rap lyric. Recio appeals. He contends that the district court abused its discretion in admitting the Facebook post, and erred in declining to grant a mistrial but instead issuing an Allen charge when the jury initially indicated it was deadlocked. For the reasons that follow, we affirm.

         I.

         On May 15, 2015, two police officers, Shane Pumphrey and Christopher Rothenberger, were on patrol in Prince George's County, Maryland. They spotted Recio, whom they knew had outstanding warrants, and observed a gun protruding from his waistband. As Recio fled, the officers gave chase, one by car, the other on foot. Officer Pumphrey saw Recio jump over the hood of an abandoned car and toss away the gun. The officers could not catch up to Recio, so they returned to the spot where Officer Pumphrey had seen Recio throw away the gun. There, the officers recovered a loaded black handgun. Police officers arrested Recio the following month, in June 2015.

         The Government indicted Recio on August 17, 2015. Before trial, the Government filed a motion in limine seeking admission of a post to a Facebook account that the Government alleged belonged to Recio. The post, from January 28, 2016 (about eight months after the charged incident), stated:

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

         The post, which contained no quotation marks or attribution to another author, closely mirrors lyrics to a rap song, Get it in Blood by Bloody Jay. In relevant part, the rap song's lyrics are: "it's always tucked, cause I'll be damned if I get my life took." The Government sought to introduce this post under Federal Rule of Evidence 801(d)(2), which provides that certain statements attributable to an opposing party are not hearsay.

         At a pre-trial hearing, the district court heard argument as to the admissibility of the Facebook post, including whether the post was authentic and whether it might be character evidence of "other acts" prohibited by Rule 404(b). The following day, the district court granted the Government's motion, holding that the Facebook post was admissible under Rules 801(d)(2)(A) (direct admissions) and (B) (adoptive admissions), and that the Government had sufficiently authenticated it. The court admitted the Facebook post toward the conclusion of the trial.

         At the close of the trial, the court submitted the case to the jury. While deliberating, the jury sent a series of notes. The first note asked whether the Government had to prove possession of the particular gun charged in the indictment, to which the court responded in the affirmative. The second note asked to re-listen to recordings of the officers' radio communications from the day of the incident, which the court permitted. The third note questioned whether these radio recordings had been edited to "exclude[] lapses, " to which the court responded as the parties agreed. Around 4:30 pm, after deliberating for half a day, the jury sent a fourth note, stating:

While we recognize that we have until 5 p.m. we do not believe any further deliberations will get us closer to a verdict today or in the future. . . . we are deadlocked. We are each of the individual conviction, through our in depth and thorough review that our current viewpoints will be unchanged even after continued voluntary or involuntary deliberations. We have given every effort and regret that we are unable to come to a unanimous verdict.

         Recio moved for a mistrial, which the district court denied. The court reasoned that though it had been "a short trial, " this was only the jury's "first indication" of a deadlock after deliberating for just "a few hours." The court called in the jurors and provided them with a modified Allen charge[1] over Recio's objection, instructing them to "get some rest, get your mind off it, come back fresh tomorrow morning and continue your deliberations."

         After deliberating for an hour the next morning, the jurors sent a fifth note, asking to see the gun, bullets, and magazine, which the court provided to them. In the late afternoon, the jury sent a final note, informing the court it had reached a unanimous verdict. The jury found Recio guilty.

         Recio noted this timely appeal, challenging the district court's admission of the Facebook post, and its refusal to grant a ...


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