Sixth Circuit OKs Conviction Based on Gun Selfie

CINCINNATI (CN) – The Sixth Circuit ruled Tuesday that a Tennessee man is not entitled to a new trial for being a felon in possession of a firearm because Facebook photos apparently showing him with guns were properly admitted into evidence.

In a 40-page ruling penned by U.S. Circuit Judge Karen Nelson Moore, the Cincinnati-based appeals court rejected Malik Farrad’s challenge to his conviction and 15-year sentence as an armed career criminal.

Tuesday’s ruling upheld a federal jury’s verdict finding him guilty of being a felon in possession of a Springfield Model XD .25 caliber semiautomatic pistol based on Facebook photo evidence and expert analysis.

According to court records, Farrad was released from prison in January 2013 for a previous felony and within months, local law enforcement was notified by confidential informants and concerned citizens that Farrad possessed one or more firearms while living in Johnson City, Tennessee.

A Johnson City police officer used an undercover account to send a friend request to a Facebook account purportedly created by Farrad, where he came across a photo uploaded by the account in October 2013 that showed what appeared to be three handguns “sitting on a closed toilet lid in a bathroom.”

The officer used the photo to get a search warrant of Facebook records associated with the account. The search revealed other photos that showed “a person who looks like Farrad holding what appears to be a gun” and others depicting “a closer-up version of a hand holding what appears to be a gun,” according to the Sixth Circuit’s ruling.

“While none of the photos shows a calendar, date, or one-of-a-kind distinguishing feature, the person in the photos has relatively distinctive tattoos, and some of the photos show, as backdrop, the décor of the room in which they were taken,” the opinion states.

Prior to the two-day trial, prosecutors introduced a certification from a Facebook-authorized records custodian who confirmed the photos were indeed uploaded by the account allegedly run by Farrad.

Farrad’s lawyer Michael Losavio argued the photos were “hearsay within hearsay” and did not indicate who actually took them or when they were taken.

However, a federal judge in Knoxville allowed the photos to be admitted as evidence, finding “no indication of a lack of trustworthiness” and that the photos amounted to business records under federal rules of evidence.

A jury found Farrar guilty and he was sentenced to 188 months – about 15 and a half years – in prison.

He appealed his conviction and sentence, but the Sixth Circuit affirmed the district court on Tuesday.

“The jury heard evidence that the photos in question came from a Facebook account registered to a Malik Farrad from Knoxville, Tennessee, and saw photos that appeared to show Farrad in his own apartment—largely ruling out the possibility that this was the work of a forger,” Judge Moore wrote for the unanimous three-judge panel. “Farrad’s trial counsel, meanwhile, never cross-examined a witness on potential alteration of the images, presented any evidence to that effect, or argued that theory to the jury.”

During the trial, two police officers also offered testimony as experts regarding the photos.

One officer had over 30 years of gunsmith experience and testified that the photo of the gun was a real Springfield handgun and could not have been a replica, toy, imitation or airsoft version.

The other officer who discovered the photos testified about criminals posting quickly to social media.

The Sixth Circuit ruled that he did not have adequate training to qualify as an expert on the subject, but found that the error was harmless and does not mean Farrad should get a new trial because his counsel did not argue over the exact date the photos were taken.

Farrad’s attorney, Losavio, declined to comment on the ruling.

U.S. Attorney Luke McLaurin did not respond to an email request for comment.

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