Though the district court erred in admitting certain evidence without allowing a defendant to cross-examine the related witnesses, the 7th Circuit Court of Appeals still upheld that defendant’s firearms convictions and sentence Tuesday.
In United States of America v. Michael S. Barber, 18-2803, Michael Barber was convicted on federal firearms charges after using a crowbar to break into the Dutchman Hunting Supplies store in Shipshewana, where he stole 15 handguns. His accomplice, Anthony Chipps, testified against Barber at trial, and the prosecution also admitted Facebook messages and cellphone location data tying him to the crime.
On appeal, Barber challenged the admission of three pieces of evidence against him at trial: the Facebook messages, cell location data and a certificate indicating Dutchman had a firearms license.
Specifically as to the firearms license, Barber argued his Sixth Amendment rights were violated because he was not able to cross-examine two officials who signed affidavits supporting Dutchman’s licensure, but who did not appear at trial. That issue was relevant to his conviction of stealing firearms from a federally licensed firearms dealer.
In writing for a unanimous appellate panel, 7th Circuit Chief Judge Diane Wood agreed with Barber that the Northern Indiana District Court erred in admitting the licensure records without requiring testimony from the officials, relying on Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), to reach that decision. However, that error was harmless, Wood continued, because another copy of Dutchman’s license was properly admitted as evidence. That copy was identified at trial by the gun shop’s owner.
But the 7th Circuit found no error in the admission of the Facebook messages discussing the robbery, noting that both a digital-media collection specialist and one of Barber’s friends testified that the account sending the robbery-related messages was Barber’s.
“This court has relied on evidence such as the presence of a nickname, date of birth, address, email address, and photos on someone’s Facebook page as circumstantial evidence that a page might belong to that person,” Wood wrote, citing United States v. Lewisbey, 843 F.3d 653, 685 (7th Cir. 2016). “Barber had all of that and more.”
The appellate court likewise upheld the admission of the cellphone data showing Barber was near Dutchman at the time of the robbery, even though a warrant had not been obtained for the data. Though the Supreme Court decision in Carpenter v. United States, 138 S. Ct. 2206, 2221 (2018) — which required warrants for location data — was still pending at the time of Barber’s trial, Wood said Barber failed to file a suppression motion based on that pending decision.
“We conclude that Barber has not shown good cause for why we should consider his untimely motion under (Federal Rule of Criminal Procedure) 12(c)(3), and so he has forfeited this argument,” the chief judge wrote. “His failure to show good cause also persuades us that there is no reason to overlook his forfeiture.”
Finally, the 7th Circuit upheld Barber’s 210-month sentence, pointing to a message found on a bench in the South Bend federal courthouse where Barber had been sitting: “TELL ANTHONY CHIPPS TO THINK B4 H GET ON THERE N LIE.”
“Based on this, the district court imposed a two-level sentencing enhancement for obstruction of justice,” Wood wrote. “… While Barber’s interpretation that this was just a statement he made out of concern that Chipps might perjure himself is possible, it is much less likely than the reading that he wanted to communicate his dissatisfaction with his co-conspirator’s decision to testify against him.”