facebook post should not have been admitted it was not mystery ceo's words were statement the post was not relevant and was unfairly prejudicial and therefore reversal is required as outlined in our briefs on may fifteenth two thousand and fifteen two police officers testified at trial that they observed larry re c f o sitting on a stoop in a high crime area in capitol heights maryland with what appeared to be the butt of a black handgun protruding over the top of his pants lack of authentication or is there a roof or zero three objection or which one is that it's frankly your honor difficult pick one thing that's objectionable about the post the identical nation we believe goes to the reliability of the post but really at root it's neither relevant and it was unfairly prejudicial particularly compared to its probative value so whether you analyze it under rule eight zero one or under rule four zero four you still come a conviction that was addressed also because you raised that point yes but the issue is whether this is probative or the jury could conclude it's appropriate of in any sense of the conduct in this case and the argument it is probative any great extent would be up to the jury but why isn't that relevant to their conduct in this case is basically his position is i've got to carry a gun to protect myself while judge niemeyer a couple definition of character evidence it's going to who this guy is this is the kind of guy who carries a gun second of marmo not more of this post at the post basically is the poster is basically saying i carry a because if the if the government wants to rely so heavily on the word always in this post then you also have to look at the other words of the post if the post for example had said it's always been topped i've always had this talk maybe we'd have a different case but the fact that the post said it is always talked and yet the government argues that that is relevant and probative of what happened eight months earlier you've got to ascribe importance to each of these words if they're trying to say that this rap lyric which wasn't my client's words therefore is something that he's embrace then you need to look at the meaning of all of these words and when the government argued this is forward looking and backward looking they turn this into something that's not only relevant to what happened eight months earlier but what continues to be relevant this is the kind of guy who always carries a gun and that caused some of the trouble here your honor because when you then create an impression with the jury that this is a bad person that is the that's where the propensity prove in this case that is carrying a gun is justified because he thinks i keep talk to protect myself and then i'm in it what if he says i'm the enforcer and always has been the street in force or always had them and several months before he enforced he hit somebody with a gun and it seems to me these are evidence yuri questions but i don't think the government there is a bad act of another occasion either the government was offering that for this case and so the question is does it fall under a don't want i think that's your main argument if you have i do have a nato one argument your honor but i've i will not agree i do not agree that it only went to rule eight zero one analysis for that day for two reasons the government offered it at the motions hearing under both rules and then the government argued in closing and in rebuttal that this is a this is a violent song this is both backward looking and forward looking so they asked the jury to infer not only that he had a gun on may fifteenth two thousand and fifteen but that he always since then in continuing till now had a gun and that's where your point about motive comes in so important to judge niemeyer if you want to look at a statement on january thirtieth two thousand and sixteen as oh i have a motive to tell people i always have a gun back off that is front looking that stay away from me from now going forward at all is the statement a bad act at all i mean if everybody wants to carry on can carry the united states of america right except allen except previously convicted  point i could see a district judge sent in yes it's a jury could look at this as relevant to two and i'm twenty two g b count as to the four zero three jacks but why wouldn't it be a party admission if you do if you posted on your own facebook account then you have eliminated the distance between yourself and the remark and you've essentially adopted the remark that put it here you're claiming ownership to it through your facebook account and what you've done that won't do or what you've done that appearances in rap videos so there have been cases that have analyzed and things like we are like this under both analyses but under will eight zero one you still need to look for a one in four zero three first you gotta get past under it you  that and i don't want you didn't joe and joe authenticity the authenticity was challenge there were four email addresses that were associated with this account it had a vanity me that's not your point here is it less well it's not my it's just so much authentic right this point if we you still have questions about the reliability because a host could we that was not that was not the bank part of the authenticity let's assume he posted this he posted this on his facebook and so it links it to him and he said this is all the truth i just learned but at ironic as did i and the government makes a big deal about how there weren't close to i don't think it's necessary for my argument and i don't want to get  i carry a gun to protect myself and he thought it's cute to make that statement by using a rap line but it's a little short clip from the rap and there are many interpretations that are possible from that the fact that he posted it could be a knife it could be lots of different things and would many liberals and tell me that i understand the point your honor but it's got to be something that the jury can easily understand and when something is open to multiple interpretations it shouldn't just be a question the joy you have trouble understanding i did when i saw that phrase i know exactly what it was for there are multiple interpretations then we have to put ourselves in the position of a reasonable juror if it's something that the jury could interpret in different ways it's not even though all it requires is it to be a felony in possession as it requires knowing possession well not now it wasn't something that was necessary for them to prove all right but it still how you still have to it's relevant to possession as possession even if even if you look at the words and say that these could arguably be arguably pleat be relevant what the government wants it to stand for is that it's an admission of something that happened eight months earlier and that's something that i want to make sure i spend time  that case it's a two thousand and four case or honor well that's what i want to take up with you a two thousand and four case was a variable to you at the time that you  is for supplemental authority that comes in after the time of briefing or after the time of argument and the cases that are available to counsel and could be discussed in briefing and in argument court i wanted to make sure i brought the keys to the court's attention the government emphasized the importance of not proving knowledge under the not only but that's what you do in a reply brief yes i can only apologize your honor and just again reiterate that i want to make sure i address that are i know what you can use the points that you want to make sure you address you have the government's argument you can address it in the reply barrie i'm not interested in making a big point of that but i want you know in the future please reserve the twenty eight j submissions if you would for authority the it comes to i recently after the point of argument and  otherwise we just get an x in the exchange of letters involving kelly says that should have been discussed at the time when the briefing worst initial briefing was completed you understand where i'm coming on position that it it that is the pathway for admission and that is the pathway that gets people followed as established both in his letter order in which he states that the basement was admitted as an adopted admission and then posting and then post it for all of the his social media community to see there by the reprinted or he'd adopted the entire saw and not just pulled out those two lines you have a close the case would you not does not necessarily allow actually in this case and i think it's important to the point that you're discussing with judge wilkinson is that he also stylized he changed words our written out into letters  tiny in its import and here again the context really matters here for for this particular keith he'd already been charged when this was was posted he knew he'd been charged with having a firearm argument as to the poor problems that were seeded in in queen are not relevant to this inquiry here because it was clearly admitted as an adopted mission and not as for or be certainly the government's argument at the pretrial conference conference may have not been the most artful and i can say that because i'm the one that made that argument but in the in the filing which prior to the pretrial conference and certainly in the ruling of the hard for maybe thirty seconds much not much longer than that on one of our i don't recall exactly but it with a lot longer than the amount of time that i spent focused on this particular line  police officers each of whom from a different vantage point saw the defendant in possession of the firearm and the testimony of these witnesses was corroborated by contemporaneous radio runs and so even verdict not there was a total of six knots and those notes addressed very specifically the radio runs the firearm and this is the first question which was a bit vague but never specifically addressed what their actual concern was and yet there was never any no never any question about the facebook posting and notably on the second day after the note that they wanted to see the gun when they were in front of judge hazel they did one juror did not even has the  or possibly to see how how high could have gone in the air with what kind of artist are speculation but this was a jury that was not shy about asking questions and yet there was not one belonged to the dependent on specifically that there were one hundred seventy four photographs from the account which existed since two thousand and seven which were either posted by the user or depicted or all of those photographs depict the defendant user name of the of you or of that he was and in fact during cross examination the defendant brought out the entirety of the song again the government notably there is not and indeed it is defense counsel closing he he admitted or agreed that the the posting at issue was his client and certainly honor there are a few things i'd like to address first judgments in response to your question to counsel about whether the jury had any questions about this piece of evidence we believe they did the jury note number four that the jury sent about an hour and a half into their deliberations they asked is the charge that the defendant was in possession of the particular weapon stipulated to you or a firearm and this is italic sized as in quote any firearm which would be illegal the reason  ask that question it's reasonable to interpret is zero we heard evidence that this is the kind of guy who carries a gun every day he quote unquote always carries a gun so is it ok if we find him guilty of having had a gun on a different day otherwise what's the reason to ask that question the instructions focused on the smith and wesson weapon the instructions focused on may fifteenth two thousand and fifteen but yet the jury comes back and as usual was well corrected when the judge pointed well you know i understand the point judgments and certainly it's the fact that the jury asked the question and it was addressed has to be taken into consideration but it's like asking for a bell to be wrong the impression had been created as i do was clarified and they were instructed to focus only on a particular gun on a particular date yes and that's accurate your honor but so now the jury's goes to that task and they actually want to see the guy and they go on for another day and a half of deliberating so if it had been that clear to them if the no and the jury the judges response had been that clarifying then why in a single issue trial with two witnesses whose accounts mostly match each other did they continue deliberate to deliberate for an additional day  well it certainly it certainly causes one to look at each of the pieces of evidence that came in in this case and all the cases of this court do the same that you want to look at how central was the potentially inadmissible evidence to the issues in the case how big a deal was the error and so i can i want to get the good deal i mean you and you in your closing argument you sort of said it was a comical reference to a rap and and then the government comes in and answers you and says well it's not comical it's pretty serious but then they say they said basically look that's mom important to our case you can set it aside they say and i submit to you that it is relevant but it's not making or breaking the case you could ignore it if you want to  mean not only were the judge's instructions focusing the jurors attention on that but the testimony of the police officers with through a specific instance of our other specific cause and on  then it's relevant to the error analysis your honor because to pick scent that the that piece of evidence came in and the government argue to your point judge niemeyer this is a pretty violent lyrics it's about shooting somebody it's backward looking and it's forward looking again created the impression from the jury that this is the kind of guy who just because he posted this on one day is the kind of guy who always carries a gun and that gets to your question to opposing counsel judge niemeyer not every facebook post is an admission putting one