UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA )

)

v. ) CAUSE NO. 2:14 CR 71 PPS

)

SAMUEL L. BRADBURY )

OPINION AND ORDER

This matter is before me on the Government’s Motion to Exclude Testimony of

Defense Experts Erik Nielson and Kyra Gaunt. (DE 117.) I already ruled from the

bench on both experts, allowing both to testify (see DE 127 for Erik Nielson and DE 135

for Kyra Gaunt), but I said that I would issue a written opinion about Dr. Kyra Gaunt

specifically. This is that opinion. 

Background

Samuel Bradbury was charged with one count of making threats to use fire or

explosives to destroy a building, specifically, the Tippecanoe County Courthouse and to

kill various local government officials. See 18 U.S.C. § 844(e). The threat was conveyed

via the social media platform of Facebook. Bradbury was found guilty after a four day

jury trial. 

During the trial, Bradbury offered Dr. Kyra Gaunt as an expert in social media to

testify about the general behavior of Facebook users. More specifically, Bradbury

sought Gaunt’s testimony as to how Facebook users interact with the platform and how

Bradbury, in particular, interacted with Facebook. In moving to exclude Gaunt’s
testimony, the Government’s primary arguments were that Gaunt’s research didn’t 

pertain to Facebook or the making of threats, that she wasn’t qualified to interpret Mr.

Bradbury’s intent when he made his post to Facebook, and that generalized testimony

regarding how people interact on Facebook wouldn’t be helpful. (See generally DE 117.)

After considering arguments from both parties, and after hearing testimony from Gaunt

outside of the presence of the jury (DE 135), I allowed Gaunt to testify, but limited her

testimony to how people interact on Facebook in general. I specifically prohibited her

from testifying about the defendant himself or his Facebook posts, as such testimony

likely falls within Federal Rule of Evidence 704(b)’s prohibition against experts stating

“an opinion about whether the defendant did or did not have a mental state or

condition that constitutes an element of the crime charged or of a defense.” Fed.R.Ev.

704(b). I gave a detailed oral ruling on the record, and what follows is a further

explanation of why I ruled the way I did. 

Discussion

The admissibility of expert testimony is governed by Federal Rule of Evidence

702 and the Supreme Court’s opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579, 113 (1993). See Lewis v. Citgo Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). 

Rule 702 provides, in relevant part, that if “scientific, technical or other specialized

knowledge will help the trier of fact[,] . . . a witness who is qualified as an expert by

knowledge, skill, experience, training or education may testify thereto in the form of an

opinion . . . .” Fed. R. Evid. 702. The Rule “also requires that: (1) the testimony must be

based upon sufficient facts or data; (2) it must be the product of reliable principles and
methods; and (3) the witness must have applied the principles and methods reliably to

the facts of the case.” Happel v. Walmart Stores, Inc., 602 F.3d 820, 824 (7th Cir. 2010).

Under this framework, I must act as a gatekeeper for expert testimony,

determining prior to admission whether the testimony is both relevant and reliable. 

U.S. v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009). In conducting this inquiry, I’m

supposed to focus “solely on principles and methodology, not on the conclusions they

generate.” Winters v. Fru-Con Inc., 498 F.3d 734, 742 (7th Cir. 2007) (citation and internal

quotation marks omitted). “The goal of Daubert is to assure that experts employ the

same ‘intellectual rigor’ in their courtroom testimony as would be employed by an

expert in the relevant field.” Jenkins v. Bartlett, 487 F.3d 482, 489 (7th Cir. 2007) (quoting

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)). This standard applies equally to

the social sciences as to more technical sciences. U.S. v. Mamah, 332 F.3d 475, 477-78 (7th

Cir. 2003). 

Dr. Gaunt has a Ph.D. in Ethnomusicology (a type of anthropology) from the

University of Michigan. (DE 109.) She is currently a professor at the Baruch College –

City University of New York in the sociology and anthropology department where she

teaches various undergraduate sociology and anthropology courses. (Id.) She has

published and spoken extensively on topics relating to the intersection of race, gender,

and the popular social media website YouTube. (Id.) 

Gaunt has also researched how people use social media. Outside of the presence

of the jury, Gaunt testified at length about the work she has done to-date studying

behavioral patterns of Facebook users. In a nutshell, Gaunt specializes in the
unintended consequences of peoples’ activity on social media. She looks at both what a

person actually posts and what others say about the person online – in her words, the

person’s digital “footprint” and digital “shadow.” Gaunt testified that she has been

collecting data on Facebook usage from her students since about 2008. That has

resulted in a body of data from between 60-90 students each semester for the past seven

years. Starting in 2011, she began analyzing and coding the data, and then in 2012, she

began publishing articles analyzing the behaviors she studied on Facebook.

Based on this work, Gaunt is qualified to opine as to the general behavioral

patterns of Facebook users. She has “grounded her work in social science principles”

and has demonstrated to me that her work “yielded facts and data sufficient to support

[her] proposed testimony” (Mamah, 332 F.3d at 477-78) – namely, that people exhibit

various behavioral patterns when interacting with social media. 

Gaunt has not, however, demonstrated that she has seen sufficient data from the

defendant, himself. Gaunt testified that she was provided with Bradbury’s Facebook

post and the various comments made to the post. But she wasn’t provided with any

other examples of Bradbury’s Facebook activity. It seems a stretch to be able to opine as

to Bradbury’s behavioral patterns on Facebook, much less his intent behind one specific

post, based on only one post. In that respect, I agree with the Government that Gaunt

wasn’t qualified to speak as to Bradbury’s intent. 

Even if that data were sufficient, I would still limit her testimony because her

opining on Bradbury’s intent is impermissible under Federal Rule of Evidence 704(b). 

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Rule 704(b) states that “[i]n a criminal case, an expert witness must not state an opinion

about whether the defendant did or did not have a mental state or condition that

constitutes an element of the crime charged or of a defense. Those matters are for the

trier of fact alone.” See also U.S. v. Hillsberg, 812 F.2d 328, 331-32 (7th Cir. 1987) (experts

are not allowed to make the final inference regarding defendant’s mental state where

that mental state is an element of the crime charged – that inference is for the jury).

Bradbury was charged with a crime that requires that he willfully made a threat; in

other words, to be guilty of the crime charged, Bradbury must have intended that his

words be viewed in a certain light. By testifying as to how Bradbury intended his

words to be viewed when making his Facebook post, Gaunt would be testifying on that

exact ultimate issue in violation of Rule 704(b). 

Instead, Gaunt was allowed to testify as to people’s interactions with Facebook in

general, as supported by her research. I disagree with the Government that such

testimony wouldn’t be helpful to the jury. The way people interact with Facebook was

central to the case, making this undoubtedly relevant testimony. Such testimony is

particularly helpful in a case like this where the expert provides “the jury a view of the

evidence well beyond their everyday experience.” Tyus v. Urban Search Mgmt., 102 F.3d

256, 263 (7th Cir. 1996) (reversing district court’s decision to exclude sociologist from

testifying in a housing discrimination suit about how an all-White advertising campaign

affects African Americans). Quite frankly, after hearing from Gaunt outside of the

presence of the jury, I found her testimony to be helpful to my own understanding of

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how Facebook works and how users interact with it. I believe the jury would similarly

benefit as Gaunt’s testimony gives some context to the basic subject of this case – online

communications. 

Also, even though such testimony may have bore on the ultimate issue of

Bradbury’s intent, this testimony doesn’t run afoul of Rule 704(b) because this more

general testimony put the final decision as to whether Bradbury’s actions conformed

with those general behaviors in the hands of the jury. Although its challenging to find a

truly analogous case to the one at hand given what a new phenomenon social media is,

Gaunt’s testimony strikes me as similar to when a police officer testifies as an expert

about the general behaviors of people engaged in criminal activity. In those cases,

police officers are routinely allowed to testify about the general behavioral patterns or

actions of those engaged in criminal activity (e.g. how drug dealers typically package

drugs for sale, “coded” speech used by individuals selling drugs or guns, etc.), so long

as they do not take the further forbidden step of commenting as to what the defendant’s

mental state or intention was. See e.g. U.S. v. Lipscomb, 14 F.3d 1236, 1239-40 (7th Cir.

1994) (expert law enforcement testimony regarding what people with a certain intent

generally do based on the officer’s experience and knowledge is permissible so long as

the officer does not testify about the defendant’s intent); U.S. v. Are, 590 F.3d 499, 512-14

(7th Cir. 2009) (same). 

Similarly, I limited Gaunt’s testimony so that she was allowed to testify about

how users typically interact with Facebook without commenting on Bradbury’s actual

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mental state. It was then up to the jury to decide whether Bradbury’s actions or state of

mind was consistent with Gaunt’s testimony. It was for these reasons I DENIED the

Government’s motion to exclude Gaunt’s testimony (DE 117), but her testimony was

limited as indicated above.

SO ORDERED.

ENTERED: July 31, 2015

s/Philip P. Simon 

PHILIP P. SIMON, CHIEF JUDGE

UNITED STATES DISTRICT COURT

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