United States v. Larry Recio
884 F.3d 230 (2018)
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Rule of Law:
A defendant's social media post quoting a third-party's statement, such as a rap lyric, may be admitted as a non-hearsay adoptive admission if the context, such as a lack of attribution and minor alterations, allows a jury to infer the defendant intended to adopt the statement as their own.
Facts:
- On May 15, 2015, police officers Shane Pumphrey and Christopher Rothenberger saw Larry Recio, whom they knew had outstanding warrants.
- The officers observed a gun protruding from Recio's waistband.
- Recio fled, and Officer Pumphrey witnessed him jump over a car and toss the gun away.
- The officers were unable to catch Recio but returned to the location and recovered a loaded black handgun.
- Recio was arrested the following month, in June 2015.
- On January 28, 2016, a post stating "It's Always Tucked, Kuz I'll B Damn If My Life Get Took!!" appeared on a Facebook account allegedly belonging to Recio.
- This post is a slightly altered version of a lyric from the rap song 'Get it in Blood' by Bloody Jay and was posted without quotation marks or attribution.
Procedural Posture:
- The United States Government indicted Larry Recio for being a felon in possession of a firearm in the U.S. District Court (trial court).
- Prior to trial, the Government filed a motion in limine to admit a Facebook post attributed to Recio.
- The district court granted the Government's motion, ruling the post admissible.
- Following a trial, the jury informed the court it was deadlocked.
- Recio's counsel moved for a mistrial, but the district court denied the motion.
- The court issued a modified Allen charge, and the jury subsequently returned a guilty verdict.
- Recio (appellant) appealed the conviction to the United States Court of Appeals for the Fourth Circuit, challenging the evidentiary ruling and the denial of a mistrial.
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Issue:
Does a defendant's social media post of a slightly altered rap lyric, without quotation marks or attribution, constitute an adoptive admission that is admissible as non-hearsay evidence under Federal Rule of Evidence 801(d)(2)(B)?
Opinions:
Majority - Judge Diana Gribbon Motz
Yes, a defendant's social media post of a slightly altered rap lyric without attribution can constitute an admissible adoptive admission. A jury could reasonably infer from the circumstances that the defendant intended to adopt the statement as his own. Here, Recio’s failure to use quotation marks, attribute the lyric to the artist, or provide any other context, combined with his slight editorialization of the lyric, provided a sufficient foundation for a jury to infer he adopted the words. The court also found the post was relevant to the charged conduct (carrying a gun) and motive, its probative value was not substantially outweighed by unfair prejudice, it was properly authenticated, and it was not improper character evidence but rather direct evidence of the crime itself. Even if its admission were an error, it would be harmless given the strength of the officers' eyewitness testimony.
Analysis:
This decision clarifies the application of traditional evidence rules, like adoptive admissions, to modern social media content. It establishes that quoting artistic works like rap lyrics is not automatically protected from being used as a defendant's own statement, especially when presented without context or attribution. This ruling provides a framework for prosecutors seeking to admit such evidence and cautions defendants that their social media activity can be interpreted as personal admissions, potentially impacting future cases involving online expression and criminal charges.
