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0 NO. SUPREME COURT of the UNITED STATES MALIK FIRST BORN ALLA FARRAD ) ) Petitioner

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0 NO. SUPREME COURT of the UNITED STATES MALIK FIRST BORN ALLA FARRAD ) ) Petitioner NO. SUPREME COURT OF THE UNITED STATES MALIK FIRST BORN ALLA FARRAD ) ) Petitioner ) ) - VS. - ) ) UNITED STATES OF AMERICA ) ) Respondent. ) On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Michael M. Losavio 1642 Jaeger Avenue Louisville, Kentucky 40205 [email protected] (502) 417-4970 Counsel of Record for Petitioner Malik Farrad 0 QUESTION PRESENTED FOR REVIEW Question I- The Sixth Circuit Court of Appeals’ lower standard of authentication by third parties for social media postings being what they are claimed to be conflicts with those of the Second, Third, Fourth and Seventh Circuit Courts of Appeal and empowers police action, from arrest to conviction, on little more than a simple FaceBook picture, in violation of Due Process of Law under the Fifth Amendment. Is not this decision in conflict with those of other Unites States courts of appeal on an important question of federal law and Due Process that impacts the 2.2 billion active monthly Facebook users, and other social media users, sufficient for a grant of the writ of certiorari under Supreme Court Rule 10 (a) and (c)? Question II – The Court of Appeals found it was error to allow a police officer to testify to the behavior of FaceBook users establishing the time and date the photograph of someone with a firearm was made, the only evidence of that, but said it was harmless error. This was so even as it indicated that there may have been a problem of insufficient evidence of the time and date of the offense to sustain a judgment. Was it not error to find this crucial evidence harmless, after on another issue deeming it crucial, such that a new trial without it is required and the Court of Appeals’ ruling a departure from the accepted and usual course of judicial proceedings to call for an exercise of this Court’s supervisory power under Supreme Court Rule 10 (a)? Question III The Court of Appeals said that pictures on social media are not “statements” and thus not subject to the prohibition on hearsay nor the reliability requirements of the rule of corpus delicti requiring independent corroboration of statements of guilt. Yet social media is all about telling others about oneself, in all the forms of media the electronic world permits. Is it not a clearly erroneous interpretation of social media and its texts, audio, video and pictures to hold non-text postings to not be “statements” and vehicles of information subject to the traditional reliability testing of our common law, the hearsay rule, the rule of corpus delicti and Due Process of law? And a departure from the accepted and usual course of judicial proceedings to call for an exercise of this Court’s supervisory power under Supreme Court Rule 10 (a)? Question IV – A crucial part of this conviction-by-photograph was the government’s contention that no fake or replica copies of the firearm claimed to be in the picture existed. But Farrad moved for a new trial after showing that such fakes were made and licenses, contrary to the assertions of the government’s expert firearms witness. Should there bit be a new trial when the government’s chief expert was shown to have made materially false statements on an issue central to the jury’s finding that Farrad possessed a real firearm in the picture? 1 LIST OF ALL PARTIES TO THE PROCEEDING IN THE COURT WHOSE JUDGMENT IS SOUGHT TO BE REVIEWED Malik Farrad, Appellant, Petitioner United States of America, Appellee, Respondent , 2 TABLE OF CONTENTS Questions Presented For Review .....................................................................................................2 Opinion Below .................................................................................................................................6 Grounds of Jurisdiction ....................................................................................................................6 Constitutional Provisions and Other Authorities Involved in This Case .........................................7 Statement of the Case.......................................................................................................................8 Reasons For Granting the Writ ......................................................................................................10 Conclusion .....................................................................................................................................19 Certification of Word and Page Length ………………………………………………………….20 Certificate of Service………………………….………………………………………………….20 Appendix……………………………………………………………………….…………..…….21 Opinion Affirming of the United States Court of Appeals for the Sixth Circuit A 1-40…22 United States v. Malik Farrad, Case Nos. 16−5102 & 16-6730 Judgment of the U.S. District Court for the Eastern District of Tennessee…..B 1-6…….63 United States v. Malik Farrad, Case No . 3:14−cr−00110−1 Order Denying New Trial the U.S. District Court for the Eastern District of Tennessee United States v. Malik Farrad …………………………………………………………………………………………C 1-13…69 3 TABLE OF AUTHORITIES Cases Smith v. United States, 348 U.S. 147, 153-54 (1954) ................................................................... 15 Griffin v. Bell, 694 F.3d 817 (7th Cir. 2012) ................................................................................. 12 Opper v. United States, 348 U.S. 84 (1954) ................................................................................. 15 United States v Brown, ___ F.3d ___ (3rd Cir. 2016) ................................................................ 11 United States v Martinez, 588 F.3d 301 (6th Cir. 2009) .......................................................... 15, 16 United States v. Hampton, ___ F.3d ___ (6th. Cir 2013), .............................................................. 5 United States v. Hassan, 742 F.3d 104, 133– 34 (4th Cir. 2014 .................................................. 10 United States v. Hassan, 742 F.3d 104, 133– 34 (4th Cir. 2014), ................................................ 13 United States v. Hunter, 558 F.3d 495 (6th Cir. 2009) ................................................................. 13 United States v. Jackson, 208 F.3d 633, 638 (7th Cir.2000) ........................................................ 12 United States v. Ramirez, 635 F.3d 249 (6th Cir. 2011) ................................................................ 16 United States v. Vayner, 769 F.3d 125 (2d Cir. 2014) .................................................................. 12 Wong Sun v. United States, 371 U.S. 471, 489 (1963); ................................................................ 15 Statutes 18 U.S.C. §§ 922 (g) ................................................................................................................... 6, 7 18 U.S.C. §3231 .............................................................................................................................. 7 18 U.S.C. § 3663A .................................................................................................................... 6, 22 28 U.S.C. §1291 .............................................................................................................................. 7 28 U.S.C. §1294 .............................................................................................................................. 7 Rules Fed. R. Evid. 901(a). .................................................................................................................... 12 Fed. R. Evid. 803(16) .................................................................................................................... 12 Fed. R. Evid. 701 ........................................................................................................................ 14 Fed. R. Evid. 702 ........................................................................................................................ 14 Supreme Court Rule .................................................................................................................... 10 Treatises COMMITTEE ON RULES OF PRACTICE AND PROCEDURE Phoenix, AZ January 8-9, 2015, http://www.uscourts.gov/sites/default/files/fr_import/ST2015-01.pdf accessed 5/31/2017 .................................................................................................................................. 12 Constitutional Provisions Fifth Amendment .......................................................................................................................... 10 4 OPINIONS AND ORDERS BELOW The opinion below of the United States Court of Appeals for the Sixth Circuit was rendered in United States v. Malik Farrad, ___ F.3d. ___ (6th Cir. 2018) Case Nos. 16−5102 & 16-6730; that opinion affirmed the judgment and orders of the United States District Court for the Eastern District of Tennessee in Case #3:14−cr−00110−1 where Farrad was convicted from Facebook pictures of someone with a gun upon a jury verdict of guilty of being a felon in possession of a firearm, 18 U.S.C. §§ 922 (g) (1) and 924(e) (3) within that district and committing Farrad to the custody of the Bureau of Prisons to a total term of 188 months imprisonment; Farrad moved for a New Trial when an expert’s testimony was shown to be false but that request was denied, appealed, and consolidated with his appeal of his judgment and sentence, wherein that ruling was also affirmed
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