United States of America v. Nathaniel Patrick Azure

United States Court of Appeals
For the Eighth Circuit
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No. 24-2363
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United States of America
Plaintiff - Appellee
v.
Nathaniel Patrick Azure
Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Eastern
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Submitted: October 20, 2025
Filed: January 15, 2026
[Published]
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Before SMITH, KELLY, and GRASZ, Circuit Judges.
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PER CURIAM.
Nathaniel Patrick Azure was convicted of six firearms-related crimes within
the Spirit Lake Reservation. On appeal, he challenges the district court’s1 denial of
1 The Honorable Peter D. Welte, Chief Judge, United States District Court for
the District of North Dakota.

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his motion for mistrial based on prosecutorial misconduct and its admission of
Facebook records. We affirm.
I. Background
Azure was charged with three counts of assault with a dangerous weapon, in
violation of 18 U.S.C. §§ 113(a)(3) and 1153, and three counts of discharging or
brandishing a firearm during and in relation to a crime of violence, in violation of
18 U.S.C. § 924(c). The counts concerned Azure shooting Dexter Greywind on
January 6, 2021; pulling a gun on Lance Cavanaugh (Lance) on May 21, 2022; and
shooting Daniel Cavanaugh (Daniel) on May 22, 2022, on the Spirit Lake
Reservation.
Prior to trial, the government notified Azure of its intent to introduce his
certified Facebook records. Those records related to the May 22 shooting. Azure
objected, arguing that the certification lacked information enabling him “to verify
the veracity of Hiralys Alvarez’s [the alleged Meta Custodian of Records] identity,
employment, or role (if any) at Meta.” R. Doc. 138, at 5.
At the final pretrial conference, Azure asserted that the Facebook certification
was “insufficient to establish authenticity.” R. Doc. 236, at 26. Azure acknowledged
that “there’s a declaration of certification” but argued that “there is no way to contact
HOR-al-is (phonetic) Alvarez at Meta to determine if there is, in fact, even a HOR-
al-is (phonetic) Alvarez that exists. And, in fact, getting through to Meta is nearly
impossible to try to do that.” Id. at 27. The government responded that, in addition
to the certification, it would offer “additional information linking [Azure] to the
record.” Id. at 28. Specifically, witnesses would “testify that they reached out to
[Azure] via this Facebook account.” Id. The district court overruled Azure’s
objection. The court reasoned that the Facebook records “are self-authenticating and
witness testimony is not required for their authentication but there may be a need to
tie it up with other evidence.” Id. at 29. The court noted that Azure was not precluded
from raising the objection again during trial.

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Azure then supplemented his authentication objection by observing that “the
rule requires that the defendant have a fair opportunity to confront these
certifications. And when we get a declaration that . . . contains no effective means
to contact the person that is declaring and certifying these records, there is no fair
opportunity to confront the certification.” Id. at 30. In response, the government
represented that it “could certainly try to find contact information for this individual”
but noted that “[t]he agent will testify that he reached out to Meta and received this
certification through her. He doesn’t get to choose who certifies it. . . . [I]t’s all done
through a portal. It gets assigned a number and that’s how it’s done, Your Honor.”
Id. The court decided to “forge ahead,” explaining that “the state of the law is clear
with regards to the Eighth Circuit and the Facebook records.” Id. The court
maintained its ruling.
At trial, the government questioned FBI Special Agent Daniel Genck about
the Facebook records. Agent Genck confirmed that he had “gone to Facebook for
records a number of times throughout [his] career.” R. Doc. 226, at 49. Agent Genck
explained that he used “the Facebook law enforcement portal,” which is “a website
that Facebook runs that allows law enforcement to make legal requests to Facebook
directly.” Id. at 50. Agent Genck testified that when making a preservation request
to Facebook, he provides Facebook with a “unique number” associated with a
Facebook account. Id. at 51. Facebook then freezes the account. This “freeze,” Agent
Genck confirmed, “is like a snapshot in time of what the account looks like in that
moment.” Id. at 51–52. Facebook sent Agent Genck an “acknowledgment that [it]
received [his] preservation request” for the “account that [he] believed [belonged to]
Nathaniel Azure.” Id. at 52–53.
According to Agent Genck, he subsequently sought “records pursuant to a
federal court order . . . related to that particular account” with the “unique identifier.”
Id. at 53. Once again, Agent Genck used the law enforcement portal to advise
Facebook that he had a court order requiring it to comply. Pursuant to the court order,
Agent Genck sought information for a three-day period of time and requested the
subscriber names; user names; screen names; mailing addresses; residential

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addresses; business addresses; email addresses; records of session times and
durations; “the temporarily assigned network addresses such as internet protocol or
IP addresses associated with those sessions”; the registration IP address; and the
“records of user activity for each connection made to or from the account[,]
including log files, messaging logs, the date/time, length and methods of
connections, data transfer volume, user names[,] and source and destination IP
addresses.” Id. at 55.
Agent Genck confirmed that Facebook provided him with “responsive
business records.” Id. at 56. Along with “11 pages of records,” Facebook “also
provide[d] [Agent Genck] with a Certificate of Authenticity saying that these are, in
fact, a copy of the business records that [Facebook] ha[s] that relate to this time
period that this Court Order states and these subjects of information that this Court
Order states [Facebook] ha[s] to provide.” Id. at 57. Agent Genck confirmed that
“Government’s Exhibit 47” was the “records that [Facebook] sent to [Agent
Genck].” Id. The government then offered Exhibit 47 into evidence, but Azure
renewed his objection based on the “foundational problem.” Id. at 58. The court
overruled the objection and received Exhibit 47 into evidence, explaining that the
government established foundation “through testimony, through certification[,] and
through the testimony at trial.” Id.
During trial, the government also questioned Agent Genck about law
enforcement’s investigation and collection of physical evidence. During this line of
questioning, the government asked Agent Genck whether Azure consented to a
buccal swab for DNA testing purposes:
Q. Nevertheless did you at one point try to obtain a buccal
swab by consent from the defendant?
A. I did.
Q. And when did that happen?

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A. When he was arrested. As part of the booking process with
the U.S. Marshals Service, there’s a mandatory DNA sample that’s
taken from every arrestee. As part of that I also asked him separate and
aside from this: Would you consent to DNA so that we could search the
evidence in this case? And he declined.
Q. A mandatory part can’t be submitted for testing because
it’s mandatory?
A. Correct.
Q. But you asked him for a supplementary one that you could
submit for testing if he consented?
A. Yes.
Q. And he did not?
A. Correct.
Q. And what is a buccal swab?
A. It’s a mouth swab, usually a cotton swab of both sides of
the cheek. We usually do two samples each and submit those.
R. Doc. 225, at 289–90. After this inquiry, the district court ended witness testimony
for the day. Azure’s counsel never objected during this line of inquiry.
Before proceedings commenced the next morning, however, Azure filed a
motion for mistrial or curative instruction based on prosecutorial misconduct for
asking Agent Genck whether Azure consented to the buccal swab. The government
opposed the motion. The court recessed so that it could review Azure’s written
motion. Following the recess, the court afforded each party an opportunity to briefly
argue their positions on the motion. Azure’s counsel specified that Azure’s challenge
was to “the evidence that was not consented to or any testimony regarding not having
consent with that,” as well as Agent Genck’s testimony “on Mr. Azure’s right to
remain silent and not give an explanation for certain activities that he may or may

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not have been a part of.” R. Doc. 226, at 13. Azure’s counsel asserted that mistrial
was the appropriate remedy or, in the alternative, a curative jury instruction. Azure’s
counsel requested a curative instruction be given then and at the trial’s conclusion.
The court denied the motion for mistrial but granted the motion for a curative
jury instruction. First, it found that the government did not intend to “deliberately
provoke a mistrial.” Id. at 19 (citing Oregon v. Kennedy, 456 U.S. 667, 675–76
(1982) (“Prosecutorial conduct that might be viewed as harassment or overreaching,
even if sufficient to justify a mistrial on defendant’s motion, therefore, does not bar
retrial absent intent on the part of the prosecutor to subvert the protections afforded
by the Double Jeopardy Clause.”)). The court determined that the government “took
great pains to elicit testimony regarding the integrity and the fidelity of the
investigation itself.” Id. It found “that the line of questioning was not improper.” Id.
at 20. The court also noted that Azure never objected to Agent Genck’s testimony.
Second, the court assumed that even if the prosecutor’s line of questioning was
improper, it would nonetheless deny the motion for mistrial based on “the
cumulative effect of the alleged misconduct, . . . the strength of properly admitted
evidence in this case[,] and . . . [the] curative actions that are options of the [c]ourt.”
Id. at 21. Finally, “[i]n an abundance of caution,” id., the court issued the following
curative instruction to the jury when testimony resumed:
Ladies and gentlemen, you heard testimony that the Defendant would
not consent to the taking of his DNA. The United States Constitution
guarantees its citizens the right to be free from unreasonable searches.
Without a warrant, citizens are free to refuse to consent to the
government’s request to search their persons. A person may refuse to
consent to the taking of DNA, and you may not consider whether the
Defendant’s refusal to consent to the taking of his DNA as evidence of
guilt.
Id. at 25–26. Neither party objected to the court’s curative instruction. The court
repeated the instruction in its final instructions to the jury. See R. Doc. 169, at 29.

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The jury convicted Azure, and the district court sentenced him to 384 months’
imprisonment.
II. Discussion
On appeal, Azure challenges the district court’s denial of his motion for
mistrial based on prosecutorial misconduct and its admission of the Facebook
business records.
A. Prosecutorial Misconduct
“We review for an abuse of discretion the district court’s denial of a
defendant’s motion for mistrial on the basis of prosecutorial misconduct.” United
States v. Kopecky, 891 F.3d 340, 343 (8th Cir. 2018). “The test for reversible
prosecutorial misconduct has two parts: (1) the prosecutor’s remarks or conduct
must in fact have been improper, and (2) such remarks or conduct must have
prejudicially affected the defendant’s substantial rights so as to deprive the
defendant of a fair trial.” United States v. Hernandez, 779 F.2d 456, 458 (8th Cir.
1985). We evaluate three factors in determining whether the defendant was deprived
of a fair trial. Kopecky, 891 F.3d at 343. First, we consider “the cumulative effect of
the misconduct.” Id. Second, we consider “[t]he strength of the properly admitted
evidence.” Id. Finally, we consider any of the district court’s “curative actions.” Id.
“The ultimate question is whether the prosecutor’s comments, if improper, so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.” Id. (quoting United States v. New, 491 F.3d 369, 377 (8th Cir. 2007)).
“Here, even assuming the prosecutor’s line of questioning was improper, the
district court did not abuse its discretion in denying [Azure’s] motion for mistrial
because the exchange did not prejudicially affect his right to a fair trial.” Id. (footnote
omitted). First, the exchange between the government and Agent Genck concerning
whether Azure consented to the buccal swab was “brief” with “little potential for
prejudicial effect in light of the whole trial.” Id. The brief exchange consisted of the
government asking, “But you asked him for a supplementary [buccal swab] that you
could submit for testing if he consented?” R. Doc. 225, at 290. Agent Genck

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responded, “Yes.” Id. The government then asked, “And he did not?” Id. Agent
Genck answered, “Correct.” Id.; see also Kopecky, 891 F.3d at 343 (“The testimony
in question constituted a single, short, isolated exchange in the context of a several-
day trial: ‘Did you get consent?’ ‘I did not.’”).
“Second, the [g]overnment presented strong, independent evidence of
[Azure’s] guilt.” Kopecky, 891 F.3d at 343. “The key participants who were with
Azure at the time of his crimes testified.” Appellee’s Br. 31.2 The government also
presented documentary,3 physical,4 and forensic5 evidence to establish Azure’s guilt.
Appellee’s Br. 33–35.
2 These witnesses included Michael Denne, his brother, and Peyton
Walkingeagle, who testified about the January 6 shooting of Greywind; codefendant
Dantae Whitetail, who testified about the May 21 incident with Lance; and
D’Angelo Littlewind, Azure’s cousin, who testified about being with Azure just
prior to the shooting of Daniel. Additionally, Greywind, Lance, and Daniel—the
victims of the crimes—all testified. And Blossom Harrison, Taylah Thumb, Larissa
Dunn, and Brittany Lawrence, bystanders to the various crimes, testified about what
they saw and heard on the dates in question. In addition to these witnesses, four
Bureau of Indian Affairs (BIA) officers and two FBI agents testified about the results
of their investigation.
3 Gov’t Ex. 4 (map identifying location of the shotgun in January 2021); Gov’t
Exs. 11–18 (photographs of injuries sustained by Greywind and Daniel); Gov’t Ex.
66 (photographs of May 22 crime scene); Gov’t Exs. 49–52 (maps of the places
where events took place); Gov’t Exs. 53–55 (surveillance videos); Gov’t Exs. 5, 70
(photograph of Azure taken in May 2022 and photograph of another “Nathaniel”
whom Azure tried to implicate); Gov’t Exs. 61–65 (video calls between Azure and
others while he was in jail after the May 22 shooting).
4 Gov’t Exs. 1, 2 (two firearms that were used in the commission of the
crimes); Gov’t Ex. 3 (shell casing found at the scene).
5 Gov’t Ex. 35 (lab report dated January 24, 2023, of firearm); Gov’t Ex. 37
(visual aid prepared by firearms and toolmarks expert).

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Finally, the district court issued an unobjected-to curative instruction once
Azure raised the issue of prosecutorial misconduct the day following Agent Genck’s
testimony about the buccal swab. “We presume that juries follow a court’s
instructions, and we are satisfied that the court’s curative actions here dispelled any
potential for undue prejudice stemming from the improper remarks.” Kopecky, 891
F.3d at 344 (citation modified).
“On the basis of these three considerations, we find that the brief exchange
between the prosecutor and [Agent Genck] was not so prejudicial as to deprive
[Azure] of a fair trial.” Id.
B. Facebook Records
Azure claims that the certifications provided by the government failed to
include any contact information for the individual certifying the Facebook records
and therefore should not have been admitted.
“We review the district court’s admission of evidence for abuse of discretion.
We give great deference to the ruling of the trial court.” United States v. Lamm, 5
F.4th 942, 946 (8th Cir. 2021) (citation modified). Reversal is only appropriate
“when an improper evidentiary ruling affected the defendant’s substantial rights or
had more than a slight influence on the verdict.” United States v. Perez, 61 F.4th
623, 626 (8th Cir. 2023) (quoting United States v. Omar, 786 F.3d 1104, 1112 (8th
Cir. 2015)).
“To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding that
the item is what the proponent claims it is.” Fed. R. Evid. 901(a). “Testimony that
an item is what it is claimed to be” “satisfies the requirement.” Fed. R. Evid.
901(b)(1). “[E]vidence that satisfies the requirement” also includes “[t]he
appearance, contents, substance, internal patterns, or other distinctive characteristics
of the item, taken together with all the circumstances.” Fed. R. Evid. 901(b)(4). “The
party authenticating the exhibit need only prove a rational basis for that party’s claim

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that the document is what it is asserted to be. Authentication may be established by
circumstantial evidence.” Lamm, 5 F.4th at 946–47 (citation modified). “To
authenticate evidence, a party must clear only a low bar.” Id. at 947 (citation
modified). “Conclusive proof of authenticity is not required, and once the threshold
requirement is met, any question as to whether the evidence is authentic is for the
jury.” Perez, 61 F.4th at 626 (citation modified).
“As we have recognized, the ‘authentication of social media evidence presents
some special challenges because of the great ease with which a social media account
may be falsified or a legitimate account may be accessed by an imposter.’” United
States v. Midder, 139 F.4th 649, 652 (8th Cir. 2025) (quoting Perez, 61 F.4th at 626).
“[A] certification from a social media platform alone is insufficient to establish
authenticity.” Perez, 61 F.4th at 626. But “the [g]overnment may authenticate social
media evidence with circumstantial evidence linking the defendant to the social
media account.” Lamm, 5 F.4th at 948.
We conclude that the government’s evidence provided a rational basis for its
claim that the Facebook records were for Azure’s account, which he used around the
time of the May 22 shooting of Daniel. First, BIA Special Agent Jerry Lenoir
testified that Lance showed him a particular Facebook profile, which he then
captured by screenshot. The screenshot was admitted into evidence as Government’s
Exhibit 19. Agent Lenoir confirmed that “the first page of Exhibit 19 reflects the
profile name of a Facebook account” and that “the second page reflects the unique
Facebook identifier,” which law enforcement used “to preserve [the] account.” R.
Doc. 223, at 16–17.
Second, Lance testified that after Daniel’s shooting, he messaged Azure on
the Facebook profile identified in Exhibit 19. According to Lance, he recognized
some of Azure’s “friends” on the profile. R. Doc. 225, at 51. One of those “friends”
was D’Angelo Littlewind, whom Lance described as Azure’s “little cousin,” id. at

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28, and “little brother,” id. at 51.6 Lance confirmed that “the user of the Nathaniel
Azure account read the messages,” but Azure never responded. R. Doc. 225, at 53.
Third, the minor sister of Azure’s then-girlfriend testified about seeing
Facebook messages that Azure sent to her sister, Skyla Cavanaugh, asking her to
pick him up on May 22, 2022. According to the minor sister, she was using Skyla’s
phone while Skyla was taking a nap. She noticed that the phone was receiving
Facebook “messages and calls” from Azure. R. Doc. 224, at 47. The minor sister
testified that in the Facebook messages, Azure asked Skyla “if she could go get him.”
Id. The minor sister knew that the Facebook messages were from Azure because
“[h]is name popped up.” Id. Azure also placed “audio calls that [were] received
through Facebook” to Skyla’s phone. Id. at 48. Once again, the minor sister knew
the calls were from Azure because “[h]is name popped up.” Id.
Fourth, Agent Genck testified that Facebook is “the most common . . .
communication method used on the Spirit Lake Reservation” because of its lack of
cost, compatibility with Wi-Fi, and ease of use across mobile devices. R. Doc. 226,
at 47–48. Through Facebook’s law enforcement portal, Agent Genck had Facebook
preserve records. In response to legal process, Facebook provided records through
the portal to Agent Genck, with a certificate of authenticity (Exhibit 47).
Fifth, once Exhibit 47 was admitted into evidence, Agent Genck testified that
“whomever set up the [Facebook] account” used “the first name . . . Nathaniel [and]
the last name Azure.” Id. at 58–59. When Agent Genck saw this information, he
recalled Lance’s statement that “he [had] messaged Nathaniel Azure’s Facebook
account” and provided law enforcement with “this number.” Id. at 59. Agent Genck
noted that “whoever set up the [Facebook] account used the name Nathaniel Azure.
So it follow[ed] . . . that this might be the correct account.” Id. Agent Genck
confirmed that he “had seen the . . . landing page for that Facebook account even
before [he] sought [the Facebook records] and saw that picture of D’Angelo
6 Littlewind testified that he and Azure are cousins. R. Doc. 224, at 204.

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Littlewind as one of the friends.” Id. This gave “further credence” that this was
Azure’s account. Id. Exhibit 47 also contained an IP address used to access the
account. Agent Genck confirmed that he was “really focused . . . on figuring out
where . . . th[e] IP address was located that was used to access this Facebook account
after the shooting.” Id. at 69. The IP address pointed to Ross Acres, a neighborhood
near the neighborhood in St. Michael where the May 22 shooting occurred. The
subscriber records showed that one of Azure’s relatives lived at the address in Ross
Acres where that IP address was assigned. The back of the relative’s property
“butt[ed] up to the property of . . . Nathaniel’s aunt.” Id. at 82. Agent Genck testified
that the Facebook account access location was important because he was “looking
into [Azure’s] supposed alibi.” Id. at 69. Law enforcement never obtained the
“content” of any Facebook messages; instead, Agent Genck testified that only
“subscriber and account information” were provided. Id.
“Taken together, this evidence provided a rational basis for the district court
to pass the question of authentication [of the Facebook records] to the jury.” Lamm,
5 F.4th at 948. The district court did not abuse its discretion in admitting the
Facebook records.7
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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7 Azure argues that he did not have “a fair opportunity to challenge the
purported certificate,” but he does not explain why the information provided was not
sufficient to allow him to “verify the veracity” of the custodian’s “identity,
employment, or role (if any) at Meta.” Appellant’s Br. 17. Even assuming that the
district court erred in not affording Azure the opportunity to challenge the certificate,
such error was harmless. See Fed. R. Crim. P. 52(a) (“Any error . . . that does not
affect substantial rights must be disregarded.”). As explained, the government
presented sufficient circumstantial evidence linking Azure to the Facebook account,
and Azure does not offer any suggestion as to how “verifying the veracity” of the
custodian’s name, employment, and role at Meta might have called into question that
evidence.

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