Argued: January 24, 2018
from the United States District Court for the District of
Maryland, at Greenbelt. George Jarrod Hazel, District Judge.
Whitcomb Fierst, CAPITAL ONE, Tysons Corner, Virginia, for
Francesca Anne Liquori, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
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.
WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
GRIBBON MOTZ, CIRCUIT JUDGE.
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.
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.
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
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.
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.
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.
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 over Recio's objection, instructing
them to "get some rest, get your mind off it, come back
fresh tomorrow morning and continue your deliberations."
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.
noted this timely appeal, challenging the district
court's admission of the Facebook post, and its refusal
to grant a ...