## Facts

- Edward Thomas was charged in federal court with sex trafficking of a minor.
- The prosecution contended that “Minor Victim 2” (MV2) traveled across the country to meet Thomas.
- MV2 was unavailable to testify at trial.
- The prosecution sought to introduce a series of text-message exchanges MV2 sent to Thomas during the alleged travel and relationship.
- The government argued MV2’s texts should be treated as statements Thomas adopted and therefore were admissible as non-hearsay under Federal Rule of Evidence 801(d)(2)(B).
- The texts included, among others:
  - MV2: “Send a pic of ur girl,” to which Thomas replied, “Send me a pic.”
  - MV2 referenced a trip and asked for money, and Thomas replied, “I’m on it.”
  - MV2 texted, “We just arrived in Denver,” and Thomas did not respond.
  - MV2 said she was about to get to Omaha, and Thomas replied, “Ok.”
  - MV2 stated she gave Thomas money because he paid for her trip and because she did not think another girl (apparently MV1) would talk to her; about five minutes later, Thomas replied that the other girl liked her.
  - MV2 stated she did not like Thomas’s “program,” and Thomas replied, “If u would have gave it 2 days u would have been here with just me!”
- Thomas agreed his own outgoing texts were admissible as statements of a party-opponent, but objected to MV2’s incoming texts as hearsay.

## Issues

1. Whether MV2’s text messages were inadmissible hearsay when offered by the government in its case-in-chief.
2. Whether, and to what extent, Thomas’s responses (or silence) manifested adoption of MV2’s statements so that MV2’s texts qualified as adoptive admissions under Federal Rule of Evidence 801(d)(2)(B).
3. Whether some of MV2’s texts could be admitted for a non-hearsay purpose—such as to make Thomas’s admissible replies understandable—rather than for the truth of MV2’s assertions.

## Decision

- The court admitted Thomas’s own text messages as non-hearsay statements of a party-opponent under Federal Rule of Evidence 801(d)(2)(A).
- The court analyzed MV2’s texts individually rather than treating the entire exchange as automatically admissible.
- The court permitted admission of MV2’s texts to the extent Thomas’s responses (or, in appropriate circumstances, his lack of response) could be found to show agreement with, acceptance of, or reliance on MV2’s assertions—supporting admission under the adoptive-admission doctrine.
- The court also allowed MV2’s texts to be used where necessary to place Thomas’s admissible responses in context and make them intelligible, subject to the limits of the hearsay rules and appropriate trial safeguards.

## Legal Principles

- A defendant’s own out-of-court statements, offered against him, are not hearsay. Fed. R. Evid. 801(d)(2)(A).
- A statement is not hearsay if it is offered against a party and the party manifested adoption of, or belief in, the statement’s truth. Fed. R. Evid. 801(d)(2)(B).
- Adoption may be shown by an express reply, a reply that assumes the statement is true, or—depending on the circumstances—silence where a reasonable person would be expected to deny the assertion if it were false.
- Courts may admit a third party’s side of a conversation for a non-hearsay use (such as providing context for the defendant’s admissible statements) when the third party’s words are not offered for their truth.

## Conclusion

In this pretrial evidentiary ruling in a sex-trafficking prosecution, the court held that Thomas’s own text messages were admissible as party-opponent statements and that MV2’s incoming texts could be admitted to the extent Thomas’s replies (and, where justified by the circumstances, his silence) showed adoption of MV2’s assertions or the messages were needed to give meaning to Thomas’s admissible responses, rejecting the argument that MV2’s texts were categorically barred as hearsay.


United States v. Thomas, 2015 U.S. Dist. LEXIS 5726 (2015)