                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0387n.06

                                         No. 16-1592

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                                FILED
                                                                             Jun 30, 2017
UNITED STATES OF AMERICA,                              )                 DEBORAH S. HUNT, Clerk
                                                       )
       Plaintiff-Appellee,                             )
                                                       )     ON APPEAL FROM THE
v.                                                     )     UNITED STATES DISTRICT
                                                       )     COURT FOR THE EASTERN
JABRON THOMAS,                                         )     DISTRICT OF MICHIGAN
                                                       )
       Defendant-Appellant.                            )
                                                       )


       Before: BOGGS, MCKEAGUE, and GRIFFIN, Circuit Judges.

       BOGGS, Circuit Judge. A jury convicted Jabron Thomas of armed bank robbery, in

violation of 18 U.S.C. § 2113(a) and (d); brandishing a firearm during a crime of violence, in

violation of 18 U.S.C. § 924(c); and being a felon in possession of a firearm, in violation of

18 U.S.C. § 924(g). The district court sentenced Thomas to 96 months of imprisonment on the

armed-robbery and felon-in-possession counts, to run concurrently, followed by a consecutive 84

months of imprisonment for the § 924(c) firearm count, for a total of 180 months of

imprisonment.    On appeal, Thomas argues—and the government agrees—that there was

insufficient evidence to support the felon-in-possession charge because that charge concerned a

weapon found at Thomas’s workplace four days after the robbery, in a location shared by

individuals other than Thomas.

       Thomas raises three additional grounds on appeal: (1) the district court abused its

discretion when it allowed the prosecution to introduce Facebook and Instagram pictures of
United States v. Jabron Thomas, No. 16-1592


Thomas to identify him as the robber, without laying a proper foundation; (2) the district court

abused its discretion in allowing the prosecution to elicit testimony from Thomas’s parole officer

that implied that Thomas was on parole, when Thomas had agreed to allow his parole officer to

testify only for the limited purpose of identifying Thomas; and (3) the district court erred in

denying Thomas’s motion for new trial based on improper external influence on the jury, which

Thomas alleged occurred when some jurors took a piece of evidence—Thomas’s shoe—to the

bathroom to hold it up to the light in order to compare it to video footage of the robbery that

showed the robber allegedly wearing the same shoe.

       We reverse Thomas’s conviction and sentence for being a felon in possession of a

firearm, and, because that conviction increased Thomas’s Sentencing Guidelines offense level by

two, we remand for resentencing. We affirm the judgment below in all other respects.

                                                I

       On July 14, 2015, Thomas walked into the Huntington Bank in Redford, Michigan,

approached the window of a teller, and placed a black and silver handgun on the counter.

Thomas stared at the teller and nodded, prompting the teller to shove money from her drawer

through the window. Thomas then said, “her too,” referring to a neighboring teller. Thomas

moved to the neighboring teller’s window and pointed the gun at her; she gave him the money

from her drawer as well. Thomas then left the bank, stopping only to attempt—unsuccessfully—

to persuade a female customer to come with him; the customer resisted, so Thomas left alone,

and, for a few days, he evaded detection and capture.

       The Redford police, meanwhile, arrived to investigate the robbery.            Witnesses—

including customers and bank staff—described the robber’s height, weight, race, and clothing,

noting such details as the robber’s thin goatee and dark Detroit Tigers hat, and that the robber



                                                2
United States v. Jabron Thomas, No. 16-1592


had left in a dark blue or grey four-door sedan such as a Buick or an Oldsmobile. Surveillance

video footage also depicted the robbery. Local news outlets aired coverage on the robbery, and,

four days after the robbery, a viewer called in to identify the robber as the viewer’s Facebook

friend, Jabron Thomas. Redford police officers searched Facebook for that name and found a

publicly available profile with several photographs of an individual who appeared to match the

description of the robber. The Facebook profile listed Thomas’s place of employment as Rite-

Touch Auto Sales, located about two miles from the bank. Acting on this information, all six

Redford police officers who were then on duty drove to Rite-Touch Auto Sales.

       When they arrived, the officers saw Thomas standing in the entry, talking to a customer.

Thomas saw the police officers and then walked inside, making his way to the office before

closing the door. After a few minutes, Thomas emerged from the office and was arrested.

       Police subsequently entered the office and recovered a handgun in a gun case in a desk

drawer. The officers also located a blue Buick sedan parked by the garage; the title to the car

was inside, and it had been registered to Thomas the day after the robbery. The next day, police

searched Thomas’s house (having received consent to search from a woman who lived there) and

found a pair of black cargo shorts with a tassel hanging from the leg that matched the shorts

worn by the robber as seen in the surveillance video.

       A six-day jury trial ensued in the United States District Court for the Eastern District of

Michigan.   The trial focused on whether Thomas was in fact the person depicted in the

surveillance video; whether the robber’s gun was real or fake; and whether Thomas was in

possession of the gun found at Rite-Touch Auto Sales. Both bank tellers testified and made in-

court identifications of Thomas. Thomas was convicted on all counts and timely appealed.




                                                3
United States v. Jabron Thomas, No. 16-1592


                                                 II

       For the reasons that follow, we vacate Thomas’s conviction for being a felon in

possession of a firearm and we remand for resentencing, but we affirm the district court in all

other respects.

      A. There Was Insufficient Evidence to Support a Conviction for Being a Felon in
                                 Possession of a Firearm

       Thomas argues that there was insufficient evidence presented below to support a

conviction for being a felon in possession of a firearm. The jury convicted Thomas based on the

fact that police found a silver handgun in the Rite-Touch Auto Sales office that looked similar to

the gun used in the robbery and based on Thomas’s suspicious behavior of entering the office for

a few minutes, and then exiting, when the police arrived. Thomas moved for judgment of

acquittal on the felon-in-possession charge, and the district court denied that motion.

       The district court correctly set forth the applicable law as follows:

               A defendant may be convicted under § 922(g)(1) based on actual or
       constructive possession of a firearm. United States v. Grubbs, 506 F.3d 434, 439
       (6th Cir. 2007). While actual possession requires that the defendant have
       “immediate possession or control” of the firearm, constructive possession only
       requires that the defendant “knowingly has the power and the intention at a given
       time to exercise dominion and control over an object[], either directly or through
       others.” Id. (internal citations and quotations omitted). In proving constructive
       possession, it is well established that an individual’s presence near a firearm, on
       its own, is not a sufficient showing of the “requisite knowledge, power, or
       intention to exercise control over” . . . the firearm. United States v. Birmley, 529
       F.2d 103, 107–08 (6th Cir. 1976). And, while mere presence is insufficient to
       establish constructive possession, “other incriminating evidence, coupled with
       presence, . . . [will serve to] tip the scale in favor of sufficiency.” Id. at 108. Both
       actual and constructive possession may be established by direct or circumstantial
       evidence. United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973).

R.86 at 4.

       The district court declined to decide whether Thomas was in actual possession of the gun

and instead went on to analyze whether Thomas was in constructive possession of the gun:

                                                  4
United States v. Jabron Thomas, No. 16-1592


               Here, the record before the jury demonstrated that Defendant was arrested
       at his place of employment (Rite Touch Auto) a few days after he was allegedly
       seen on camera robbing a bank with a firearm that was never recovered. Upon
       arriving to Rite Touch Auto, Officer Bommarito testified that he had observed
       Defendant walking through the front door and then quickly turning back into the
       building when he saw that officers were approaching. (D.E. No. 75, Trial
       Transcript at 34–35). At this point, Latico Marshall (an employee at Rite Touch
       Auto) testified that she observed Defendant quickly walk into an interior office
       and close the door behind him. (D.E. No. 81, Trial Transcript at 99, 103–04).
       Several minutes later, officers entered the reception area and asked whether
       Defendant had entered the office. Defendant made his way out from the office
       before anyone had the opportunity to call for him. After Defendant’s arrest, a
       firearm was retrieved from an unlocked drawer in the office where he had fled.

              A reasonable jury could infer from these facts that Defendant had
       constructive possession of the retrieved firearm.

R.86 at 6–7 (emphasis added).

       Thomas argues—and the government agrees—that, indeed, no reasonable trier of fact

could have inferred Thomas’s constructive possession of the gun “beyond a reasonable doubt,”

Jackson v. Virginia, 443 U.S. 307, 319 (1979), based on the facts cited by the district court. We

also agree: Thomas’s behavior of entering the office was suspicious, to be sure, but on its own

amounts only to presence near a firearm, which we have held insufficient to prove possession.

See Birmley, 529 F.2d at 107–08. Moreover, the record reveals that the gun that was found was

in an office that belonged to the owner of Rite-Touch and in which all the Rite-Touch employees

ate lunch, took breaks, and kept files, and none of the trial testimony weighed in favor of a

finding that Thomas, rather than someone else, had dominion and control over the gun.

       Because the only evidence connecting Thomas to the gun found at Rite-Touch was

Thomas’s presence in the office for a few minutes after the police arrived and before Thomas

was arrested, the district court erred in denying Thomas’s motion for acquittal as to the felon-in-

possession charge, and we reverse and remand as to that conviction only.




                                                5
United States v. Jabron Thomas, No. 16-1592


    B. The District Court Did Not Abuse Its Discretion in Allowing the Government to Use
 Pictures from Thomas’s Facebook and Instagram Profiles to Identify Thomas as the Robber

        We review the district court’s evidentiary rulings, including rulings on whether a given

piece of evidence was properly authenticated, for abuse of discretion. See United States v.

Morales, 687 F.3d 697, 701–02 (6th Cir. 2012); United States v. DeJohn, 368 F.3d 533, 543 (6th

Cir. 2004). Thomas challenges the authentication of the Facebook and Instagram photographs

used to identify him at trial.

        To authenticate a photograph, “the proponent must produce evidence sufficient to support

a finding that the [photograph] is what the proponent claims it is,” Fed. R. Evid. 901(a); see

United States v. Hobbs, 403 F.2d 977, 978 (6th Cir. 1968) (noting that, unlike in the early days of

using photographs as evidence, “the proponent of a proffered photograph has established a prima

facie case for its admissibility when he has shown it to be an accurate representation of the scene

in question”). Evidence in support of authentication may include witness testimony that a

photograph “is what it is claimed to be.” Fed. R. Evid. 901(b)(1). Authentication does not

require certain proof, but rather only enough proof “so that a reasonable juror could find in favor

of authenticity.” United States v. Jones, 107 F.3d 1147, 1150 n.1 (6th Cir. 1997) (quoting 5 Jack

B. Weinstein et al., Weinstein’s Evidence, at 901-19 (1996)).

        At Thomas’s trial, Redford Police Lieutenant David Holt—the officer who initially

located Thomas’s public Facebook profile—testified that he logged onto Facebook with his own

account and typed the name “Jabron Thomas” into Facebook “to check and see if there was any

public profile associated with that name.” R.80 at 124. Holt found such a profile and found that

the profile “had photographs associated with” it, along with a place of employment listed as

“Rite-Touch Auto.” Holt downloaded five images from the profile, saved them, and identified

them in court as the photographs that he had found on the public Facebook profile; the

                                                6
United States v. Jabron Thomas, No. 16-1592


government then offered these five photographs into evidence as “photos that [Holt] saved from

the Facebook page that [Holt] pulled after typing in the name ‘Jabron Thomas’ on Facebook.”

Id. at 126. Thomas argues that these photographs could not be authenticated and were thus

inadmissible in part because Holt admitted that he did not know who created the Facebook page

or whether the Facebook page itself was authentic. Appellant’s Br. 27.

       The government also called FBI Special Agent George Rienerth, who testified that he

identified a publicly accessible Instagram page listed as belonging to a user with a username

“jabront80” and a full name “Jabron L. Thomas,” with “85 posts, 321 followers, 1,824

following.” R.82 at 121. Rienerth testified that he downloaded three photographs from the

Instagram page, which the government offered into evidence as the photographs that Rienerth

downloaded from that page. Thomas argues that these photographs could not be authenticated

and were thus inadmissible in part because Rienerth admitted that he did not know who created

the Instagram page, who uploaded the photographs, or whether the Instagram page was

authentic.

       Our court has not yet confronted the question whether social-media-profile photographs

are admissible to identify the person who is purported to be the owner of the profile. In many

contexts, the question could conceivably be quite interesting: what if, for example, the owner of

a social-media profile (let’s call him Alex) used a picture of someone else (say, Bob) as his

profile picture? If Bob robbed a bank, Alex would not want to be implicated as the robber

simply because he had Bob’s picture on his social-media profile. Or, what if Bob fabricated a

social-media profile under Alex’s name, but with Bob’s picture—and then Bob robbed a bank?

Or, less convolutedly, what if there were allegations that the online photographs had been

digitally manipulated or hacked in some way?



                                               7
United States v. Jabron Thomas, No. 16-1592


       None of these questions—or any like them—is presently before us, however, so we see

no reason to depart from the ordinary rule that photographs, including social-media photographs,

are authenticated by “evidence sufficient to support a finding that the [photograph] is what the

proponent claims it is,” Fed. R. Evid. 901(a). Here, the pictures appeared to show Thomas with

distinctive tattoos on his hands and his arms; appeared to show Thomas wearing a Rite-Touch

Auto hat; and appeared to show Thomas wearing Detroit Tigers or other Detroit-related hats

(although not the same Detroit Tigers hat as the one worn by the robber). One of the pictures

appeared to show Thomas at a Tigers game with “Go Tigers!!!” written on the photograph. And

more importantly, at the end of the day, the government was seeking to admit the photographs

only as the photographs of a Facebook user and an Instagram user who had profiles carrying the

name “Jabron Thomas.” The government was not seeking to authenticate a Facebook page or an

Instagram page; the government was not seeking to authenticate Jabron Thomas’s Facebook

page or Instagram page (nor any of the factual information contained therein, such as Thomas’s

workplace); and the government was not even necessarily presenting the photographs as

“pictures of Jabron Thomas”—the jury was free to consider the photographs as identifying

Thomas or not.

       A district court does not abuse its discretion when it admits social-media photographs

that are offered into evidence after testimony that the photographs are what the proponent claims

them to be.      Here, that meant admitting the photographs after hearing testimony that the

photographs to be admitted were indeed the photographs downloaded by the law-enforcement

officers who found them. And the district court here—after considering the testimony of officers

Holt and Rienerth, and being able to look at Thomas and the photographs—did not abuse its

discretion in admitting the photographs that Thomas challenges.



                                               8
United States v. Jabron Thomas, No. 16-1592


  C. The District Court Did Not Abuse Its Discretion in Allowing the Government to Use the
          Testimony of Thomas’s Parole Officer to Identify Thomas as the Robber

       Before trial, the parties agreed that the government could call Sarah Wald, Thomas’s

parole officer, to identify Thomas as the robber in the bank-surveillance footage, so long as

Wald’s status as Thomas’s parole officer was not put before the jury. At trial, Wald identified

herself by her name only and stated that she worked in law enforcement and knew Thomas from

nine face-to-face meetings that she had had with him. When the government asked how long

those meetings were, Thomas objected to that line of questioning on the grounds that it could

suggest, improperly, that Wald was supervising Thomas. The prosecutor agreed to move on,

Thomas did not seek a cautionary instruction, and at no point did Thomas object to Wald’s

identification of him.

       Thomas now claims that the district court erred in allowing Wald to identify him. See

Appellant’s Br. 28 (“Mr. Thomas was denied a fair trial when the government used his parole

officer to identify him as the individual in the bank surveillance video.”). This is said to be in

violation of United States v. Calhoun, 544 F.2d 291, 297 (6th Cir. 1976) (reversing defendant’s

conviction for bank robbery where the defendant’s parole officer identified the defendant from

photographs of the robbery, because the probative value of the identification was substantially

outweighed by the danger of unfair prejudice to the extent that the defendant’s parolee status

would make jurors aware that the defendant had recently been released from prison for

committing other crimes). Because Thomas did not raise a Rule 403 objection to Wald’s

identification of him at trial, the district court’s decision to allow Wald to identify Thomas is

reviewed for plain error. United States v. Kilpatrick, 798 F.3d 365, 378 (6th Cir. 2015).

       The district court did not plainly err. After all, unlike in Calhoun, Thomas expressly

agreed to allow the government to call Wald to identify Thomas, and the government did not

                                                9
United States v. Jabron Thomas, No. 16-1592


break its promise not to disclose Wald’s status as Thomas’s parole officer. Thomas maintains

that he preserved an objection to the prosecutor’s line of questioning insofar as it could elicit

answers from which the jury might infer that he was subject to parole supervision.              This

objection appears to have been withdrawn during a sidebar conference when the prosecutor

agreed to move on. Yet, even if the objection were deemed properly preserved, we would find

no abuse of discretion. While Thomas asserts that “[a]n inference” of Thomas’s parolee status

“in and of itself is prejudicial,” nothing in Wald’s testimony is sufficient to give rise to an

inference that Thomas was on parole; at most, a juror may have speculated that Wald’s

“meetings” with Thomas were parole-supervision meetings, but speculation falls far short of

logical inference.

        D. The District Court Did Not Err in Denying Thomas’s Motion for New Trial

       In addition to authenticating Thomas’s Instagram photographs, Special Agent Rienerth

testified that he recovered the Nike shoes that Thomas was wearing on the day of his arrest.

Rienerth identified those recovered shoes at trial and testified that the shoes had a black Nike

“swoosh” with a light gray outline. At closing argument, Thomas’s defense counsel invited the

jury to examine the shoes and compare them against the surveillance video’s depiction of

Thomas during the robbery: “When you look at [the surveillance footage] I want you to look at

the Nike swish [sic]. You will see that it is filled with a white coloring and not a black coloring.”

Thomas’s theory was that the shoes recovered from Thomas did not match the shoes worn by the

robber in the surveillance video.

       Acting on this invitation, some of the jurors took Thomas’s shoes into the (evidently

better-lit) bathroom to see whether, when held up to the light, the Nike swoosh more closely

resembled the swoosh in the surveillance video—and they found that it did. Thomas argues that



                                                 10
United States v. Jabron Thomas, No. 16-1592


this “experiment” was an improper science experiment that constitutes an external influence on

the jury in violation of the Sixth Amendment Confrontation Clause. See Doan v. Brigano, 237

F.3d 722, 732–36 (6th Cir. 2001). In Doan, a juror wanted to validate the defendant’s testimony

that a room was too dark for the defendant to see certain bruises on the decedent, so the juror

went home, put lipstick on her arm, and tested whether she could see it under similar lighting;

the juror then reported her findings to the other jurors. We held that the experiment was error,

but harmless error.

       Thomas argues that the district court should have granted him a new trial because, after

the return of the jury verdict, two jurors disclosed to the court that they had conducted their

experiment with the shoes. We review the denial of a motion for new trial for abuse of

discretion. United States v. Dado, 759 F.3d 550, 559 (6th Cir. 2014).

       The district court did not abuse its discretion in denying a new trial. Unlike in Doan, in

which a juror used her own lipstick to conduct an experiment at home, all the jurors did here was

to examine the visual appearance of the swoosh on Thomas’s shoe to compare it with the shoe

depicted in the video—as Thomas’s counsel himself had invited them to do.             While the

Constitution protects defendants from extraneous influences upon juries, jurors have free rein to

examine the evidence admitted, even if that means picking it up, putting it down again, or

holding it up to the light. See United States v. Avery, 717 F.2d 1020, 1026 (6th Cir. 1983);

United States v. Abeyta, 27 F.3d 470, 477 (10th Cir. 1994) (“There is simply no constitutional

command preventing a jury from using common sense and ordinary and uninflammatory props

to reenact a crime in the privacy of the jury room.”).




                                                11
United States v. Jabron Thomas, No. 16-1592


                                     CONCLUSION

       In sum, we REVERSE Thomas’s conviction and sentence for being a felon in possession

of a firearm, and, because that conviction increased Thomas’s Sentencing Guidelines offense

level by two, we REMAND for resentencing. We AFFIRM the judgment below in all other

respects.




                                              12
