By Bernard Vaughan
NEW YORK, Jan 31 (Reuters) - Jailhouse posts on Facebook
were at the center of a federal judge's examination on Thursday
of how much information prosecutors must provide to defendants
about cooperating witnesses.
Judge William Pauley of U.S. District Court in Manhattan
issued an order that prosecutors were not obligated to provide a
defendant with access to a cooperating witness's Facebook posts
because they never possessed the account.
This isn't the first ruling the judge has made about
Facebook posts in the case. Pauley issued a finding last year
that prosecutors could access the defendant's Facebook profile
from an informant who was one of his friends on the social
The case involves a Bronx man, Melvin Colon, who was
indicted along with other members of the "Courtlandt Avenue
Crew" on narcotics and racketeering charges. A member of the
gang, Devin Parsons, agreed in August 2011 to cooperate with the
government, Pauley wrote in the order. Colon has pleaded not
While incarcerated, Parsons used a mobile phone to post
messages on a Facebook account that he had asked a friend to
create for him under an alias, according to Pauley's order.
Under his alias, Parsons reflected on life in jail and his
cooperation, Pauley wrote.
"be home sooner then yall hereing lol(.)," he wrote in one
When his posts were revealed, the government tried to get
access to the Facebook account but Parsons had already ordered
his friend to delete it, Pauley wrote. Facebook told the
government that it could not access the account without
permission from Parsons's friend, the judge said.
Colon moved to compel the government to direct Parsons'
friend to provide the log-in information for the deleted
Facebook account, arguing his due process rights were violated
because Parsons was a member of the prosecution team.
Pauley denied that motion on Oct. 15. In his Thursday order
explaining that decision, the judge said his ruling rested in
large part on his contention that Parsons and other cooperating
witnesses are often not, in fact, members of the prosecution
Cooperating witnesses, he wrote, have not served the law but
"They are not concerned with the escape of guilt or the
suffering of innocents," he wrote. "Their cause is their own."
Pauley pointed to precedent established by the 2nd U.S.
Circuit Court of Appeals that "an informant becomes a government
agent ... only when the informant has been instructed by the
police to get information."
"The Government never instructed Parsons to make the
Facebook posts and instead asked Parsons to surrender all the
information he had," Pauley wrote. "Because the prosecutors
provided Colon with the information that was in their
possession, the Government discharged its obligations" under the
due process clause of the Fifth Amendment.
Pauley also disagreed with Colon's argument that the
government had a duty to get access to the Facebook account,
noting a 7th U.S. Circuit Court of Appeals opinion in 2002 that
said due process rights do "not require the government to act as
a private investigator and valet for the defendant."
In his ruling last August on Colon's Facebook posts, Pauley
found that Colon's legitimate expectation of privacy ended when
he disseminated posts to his Facebook friends because they were
free to use that information however they wanted.
"When Colon posted to his Facebook profile and then shared
those posts with his 'friends,' he did so at his peril," the
Attorneys for Colon and the government did not immediately
respond to requests for comment.
The case is United States of America v. Joshua Meregildo,
U.S. District Court in Manhattan, No. 1:11-cr-00576-WHP.
For Colon: Anthony Cecutti of Romano & Kuan.
For the United States: Santosh Shankaran Aravind of the U.S.
Attorney's Office for the Southern District of New York.
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