Social Media Drug Sales.

Types of social-media evidence can include posts, messages, photographs, videos, and location tags, among others. Posts can help establish event timelines and a person’s physical location. Messages, posts, and even photos can provide evidence of intent or a person’s state of mind. Social-media evidence can also be used to identify a person’s close contacts and associations, and social-media interactions, including “friendships,” “follows,” “likes,” and “shares”, can reveal relationships among suspects, victims, and witnesses. If two or more people are suspected of conspiring to commit a federal drug crime, their social-media activities may be used by federal prosecutors to support a theory of joint operation.

However, social-media evidence can also be used to support a defendant’s alibi or provide other favorable evidence. For example, if a defendant’s location data from social-media activity places them at a completely different location than where a suspected drug sale took place, that information may be used in the defendant’s defense. And if a witness’s testimony about their whereabouts on a specific day is contradicted by their social-media activity, prosecutors or defense lawyers may be able to use that evidence to impeach that witness’s credibility.

What is Necessary to Do in Order to Counter the Weight of Social-Media Evidence in Federal Drug Cases?

The fact that social-media content has been lawfully collected, authenticated, and placed in the hands of federal prosecutors does not automatically make it admissible. And even if the evidence is admitted, admissibility does not necessarily make the evidence powerful. Context is everything, and it is important to challenge any use of this evidence to the greatest extent possible.

In this regard, there are several key defense considerations. With respect to authentication, for example, proving that the material is authentic and that the defendant created and/or published the material is not necessarily the same as showing that the evidence means what the government claims it means. Defense lawyers can also examine the context of social-media evidence, both internally and externally, to see whether it is actually supportive of the government’s case. They can also examine the methods and procedures federal prosecutors used in order to collect social-media evidence. These areas of inquiry can be critical to the defense and can make the difference between federal conviction and federal acquittal.

How Do Prosecutors Connect Online Content to a Specific Account User?

In drug-sale prosecutions, federal prosecutors may seek search warrants and send preservation letters to internet providers in order to obtain evidence of defendants’ social-media activity. While encrypting messages does not guarantee that investigators will not be able to obtain their contents, federal authorities may also seek to obtain private-account information through lawful authorization or other legal processes.

Once relevant social-media evidence is available, preserving it can help support challenges to its authentication and admissibility. Relevant digital evidence should generally be preserved in its original form, though screenshots, downloads, and the use of digital-forensic tools may be sufficient in some cases. And, to avoid accusations of mishandling, the chain of custody should be clearly documented.

If social-media evidence is lawfully obtained and preserved in its original form, the next step for the government is authentication. To establish authentication, federal prosecutors generally seek to demonstrate that the evidence is what they claim it is. However, authenticity and admissibility are not the same. For example, while an IP address or device information may link a social-media account to a defendant’s mobile device, demonstrating that a person used that device to publish a social-media post is not the same as demonstrating the person’s identity as the author of that post.

What Can Social-Media Evidence Actually Prove in a Drug-Sale Prosecution?

Messages, posts, and even photos can provide evidence of intent or state of mind.

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When Does Online Activity Show a Drug Sale Rather Than Possession?

At what point does a social-media post, photo, or message cross the line from showing a drug-related crime to showing intent to distribute? This will depend on the specific facts and circumstances at issue, but some key examples of evidence that may be used in federal prosecutions include:

• Group chat messages and social-media messages that discuss prices and other sale-related details
• Photographs and videos that depict drugs, drug-related paraphernalia, or large sums of cash
• Public social-media posts, including those that appear to market or facilitate the sale of illegal drugs
• Evidence of direct messages between suspected drug sellers and potential customers

While many posts, photos, and videos may be admissible, some social-media statements, specifically those in the form of direct messages, may raise significant hearsay issues. Depending on the circumstances, defense counsel may be able to challenge the admissibility of these statements, and if prosecutors cannot demonstrate that an applicable exclusion or exception to the hearsay rule applies, a judge may exclude this evidence from trial.

The timing of a person’s social-media activity can also be important. For example, while social-media posts may provide evidence of intent to distribute, the deletion of such posts or other evidence after being targeted in a federal investigation can give federal prosecutors a means to try to obtain a conviction for evidence tampering. This makes it important for individuals who are under investigation to protect their rights and seek legal counsel prior to deleting any social-media content.

How Can Digital Evidence be Used in Conspiracy to Commit a Drug Crime Cases?

While digital evidence can often help prosecutors connect multiple people who are alleged to have conspired to commit a federal crime, conspiracy liability in the federal justice system is exceptionally broad. Often, it can include liability for certain substantive offenses committed by other participants that were within the scope of the conspiracy, in furtherance of it, and reasonably foreseeable. This means that a person targeted in a federal drug-sale conspiracy investigation can be held liable for others’ criminal conduct, even if he or she did not personally commit the underlying offense. This makes it critical to promptly engage a defense lawyer when targeted in a conspiracy-related prosecution.

Why Might a Social-Media Drug Case be Prosecuted Federally?

While social-media evidence is often a major factor in federal drug-sale cases, there are many reasons why a case may be prosecuted at the federal level. Many drug cases involve factors that warrant federal prosecution, including the drug-specific quantity thresholds established under 21 U.S.C. § 841. In the event of meeting these thresholds, federal prosecutors are more likely to pursue charges to maximize the defendant’s potential sentence. For example, while most drug sale cases trigger a federal charge for distribution, reaching five kilograms of cocaine or 400 grams of fentanyl triggers the ten-year federal threshold under § 841(b)(1)(A), and these are the thresholds that are most common in federal court.

Furthermore, state and federal authorities are permitted to prosecute the same underlying conduct separately. This means that a defendant can face both state and federal charges for the same actions. While a defendant may seek to use this as an argument against federal prosecution, courts allow state and federal prosecutors to pursue the same cases due to a variety of constitutional protections and jurisdictional considerations.

Interstate transportation of illegal drugs is another major factor in cases that get prosecuted in the federal justice system. If evidence shows that a defendant transported illegal drugs across state lines, this will likely trigger federal prosecution. However, just because a social-media post or message makes reference to a drug sale spanning across state lines, this does not automatically make it a federal case. While interstate transportation is a factor that federal prosecutors take into consideration, it is only one of several key factors that must be determined before a case can be filed. There are multiple elements that may justify federal prosecution and a court’s decision to let federal prosecutors take a case can depend on everything from the amount of drugs involved to whether the criminal conduct involved an international aspect.

Speak With Counsel Before You Answer Anything

If agents have contacted you, the order matters: counsel first, answers second. Spodek Law Group has been practicing since 1976 and defends federal matters nationwide, coast to coast, from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028.