Commercial Litigation and Arbitration

Surveillance Video Authentication via Circumstantial Evidence — Fact That Video Is Programmed to Skip a Few Seconds Intermittently Neither Renders It Inauthentic Nor Subject to 403 Exclusion

United States v. Cejas, 2014 U.S. App. LEXIS 14874 (7th Cir. 2014):

A. Video Was Properly Authenticated

We begin with Constantino and Nicholas's joint argument that the video showing them outside of Denny's residence on February 14, 2011 should not have been admitted at trial because the government did not establish a proper foundation to authenticate it. Our review of evidentiary rulings is for abuse of discretion, and we will reverse only if "no reasonable person could take the view adopted by the trial court." United States v. Vargas, 552 F.3d 550, 554 (7th Cir. 2008).

In laying the foundation for admitting the video, the government established through Agent Wheele's testimony that the pole camera produced accurate results throughout the investigation and the video offered in court was a fair and accurate depiction of what he saw through the pole camera. After defense counsel objected, and the government elicited more details about the accuracy of the video and Agent Wheele's knowledge of the events shown in it, the judge overruled counsel's authentication objection and admitted the video into evidence. The brothers cannot show that the court abused its discretion in doing so.

A party seeking to admit an item into evidence--whether a document, weapon, photograph, audio or video recording, or other item--must first establish the item's genuineness. Fed. R. Evid. 901. This requires the proponent to "produce evidence sufficient to support a finding that the item is what the proponent claims it is." Id. Of course it must also be relevant to an issue at trial. Fed. R. Evid. 401, 402. There is no question that the February 14 video was pertinent to the government's efforts to prove the brothers' guilt. The only question before us is whether the government satisfied Rule 901's authentication requirement.

The admitting party's burden of making a prima facie showing that the item is genuine can be satisfied in several ways, including through the testimony of a witness with knowledge or evidence showing that a process or system produces accurate results. Fed. R. Evid. 901; see United States v. Fluker, 698 F.3d 988, 999 (7th Cir. 2012). For video recordings, like tape recordings, the proponent should also show that the camera functioned properly, the operator was competent in operating the equipment, and the recording fairly and accurately represented the scene depicted. Cf. United States v. Eberhart, 467 F.3d 659, 667 (7th Cir. 2006) (finding, for audio tapes, that the government must show by clear and convincing evidence that the recording is true, accurate, and authentic).

The brothers' argument that the video was not properly authenticated fails first because trial testimony from witnesses with knowledge supported the finding that the video was what the government claimed it was--a video showing the events that occurred outside of Denny's home on February 14. The evidence establishes that the video showed Denny's residence. Denny confirmed that Government Exhibit 3 was a picture of his house, and Agent Wheele's testimony established that the house in that photograph was the same as the one shown in the video. These witnesses had personal knowledge that the house was Denny's house. Denny's testimony also provided sufficient evidence for a reasonable jury to conclude that a drug buy went down with the brothers at his house on that day. He verified that he and "Tino" exchanged texts on February 14 discussing where to meet for that day's drug buy, and settled on meeting at his home. Agent Wheele then testified that he watched the events unfold as they were captured on the pole camera on February 14, which showed the brothers arrive at Denny's home in Nicholas's pick-up truck. After he saw the brothers pull out of the driveway, Agent Wheele ordered law enforcement officials to conduct a traffic stop and officers pulled them over as they were heading eastbound from Terre Haute (where Denny lives) to Indianapolis (where the brothers lived). The video had shown both brothers access the toolbox after exiting Denny's home, and the officers found a gun and $8,000 cash in the toolbox after they pulled them over. This evidence corroborates the events the video recorded and supports a finding that it was a true and accurate representation of what  [*12] happened outside Denny's home on February 14. See Eberhart, 467 F.3d at 667; cf. United States v. Carrasco, 887 F.2d 794, 802 (7th Cir. 1989) (foundation is properly laid for a tape recording when there is corroborating eyewitness testimony).

The brothers attempt to attack the reliability and accuracy of the pole camera recording, but their argument is unsupported by the record. Agent Wheele confirmed that the pole camera was monitored throughout the investigation and was consistently producing accurate results. See Eberhart, 467 F.3d at 667. Additionally, the video noted the precise date and time of the recordings, which were consistent with the activities that Denny testified occurred on those dates. Cf. Griffin v. Bell, 694 F.3d 817, 826-27 (7th Cir. 2012) (affirming exclusion where video did not have date or time stamp). Trial testimony that Agent Wheele worked with many pole cameras during his tenure as a special agent also made it clear that he was qualified to competently monitor the camera, as well as testify regarding its general use and accuracy. See United States v. Rembert, 863 F.2d 1023, 1026 (D.C. 1988) (finding authenticity can be established by testimony regarding camera use, quality, and reliability). This evidence, along with Agent Wheele's testimony that the video recording presented in court was a fair and accurate representation of the recording of events he observed on February 14, was sufficient for Rule 901's purposes. See Fluker, 698 F.3d at 999 ("Only a prima facie showing of genuineness is required; the task of deciding the evidence's true authenticity and probative value is left to the jury.").

The brothers give us no sound reason to doubt the video's authenticity. They do not argue, for example, that the scenes depicted in the video did not occur outside of Denny's home, or that they were not the individuals seen in the video. They fail to give us any reason to believe the video was spliced, or improperly altered in any way, or that the pole camera did not accurately record the events as they unfolded. See Bell, 694 F.3d at 826-27 (affirming decision not to admit video where proponent could not say what type of device was used or whether video was altered); Carrasco, 887 F.2d at 802 (tape admissible where there is evidence it was not altered improperly while in custody). They simply argue that Agent Wheele was not the proper person to establish  [*14] the genuineness of the video because he watched a live feed of the video and did not personally witness the events the recording captured. We reject this argument. As long as the government provided a convincing reason to believe that the video was a fair and accurate depiction of the events that unfolded on February 14, Rule 901 was satisfied. See Fluker, 698 F.3d at 999 (authenticating email on circumstantial evidence alone where no witness saw the email's author draft the email); Eberhart, 467 F.3d at 667; Rembert, 863 F.2d at 1027 ("Even if direct testimony as to foundation matters is absent ... the contents of [an item] itself, together with such other circumstantial or indirect evidence as bears upon the issue, may serve to explain and authenticate [the item] sufficiently to justify its admission into evidence." (quoting United States v. Stearns, 550 F.2d 1167, 1171 (9th Cir. 1977))). Witnesses' testimony established that the house in the video was Denny's house, and explained how the camera worked, that it produced accurate results, and that the clips in court were consistent with what the live feed showed as the events unfolded. Therefore, the court did not abuse its discretion  [*15] in admitting it. See United States v. Westmoreland, 312 F.3d 302, 310-11 (7th Cir. 2002) (tape recording properly authenticated where testifying agent listened to the conversation via headphones at the time the conversation took place).

The brothers also argue that the recording's tendency to intermittently skip a few seconds at a time makes the recording unreliable. This argument also fails. "[R]ecordings that are partially unintelligible are admissible unless the unintelligible portions are so substantial as to render the entire recording untrustworthy." United States v. Larkins, 83 F.3d 162, 167 (7th Cir. 1996) (dealing with tape recordings). The video in this case skipped a few seconds at a time, totalling about thirty seconds over the course of the entire thirty-five minute video. The few seconds missing periodically between stretches of properly recorded video footage did not render the video unintelligible, unreliable, or irrelevant. Id. at 168 (holding that unintelligible parts did not make tapes inadmissible, but went to their weight as evidence). Since the skipping of the video did not prevent the jury from understanding the course of events in this case, the missing seconds  [*16] did not require exclusion of the entire video.

Because the video was relevant to establish defendants' presence at the site of a drug deal, trial testimony established a prima facie showing that the video was genuine, and the skipping nature of the video did not make it incomprehensible, the court did not abuse its discretion in admitting the video.

B. Video Not Barred by Rule 403

Nicholas finally challenges the video's admission by arguing that it unfairly prejudiced him and should have been excluded under Federal Rule of Evidence 403. This argument is without merit because the video's probative value was not substantially outweighed by the danger of unfair prejudice or confusing the jury. See Fed. R. Evid. 403.

The pole camera video was relevant to the issue of Nicholas's involvement in the February 14 drug transaction as it showed Nicholas drive up to Denny's residence around the date and time of the drug deal. It shows Nicholas leave the truck and walk over to the toolbox attached to it. It shows the toolbox lid open, while Nicholas stands beside it, and then closed with his hand on top of it. The video then shows Nicholas walking towards Denny's home and exiting a few minutes later.  [*17] Lastly, the video shows both Nicholas and Constantino accessing the toolbox before Nicholas drives away. When FBI agents pulled the brothers over a few minutes later, they found $8,000 and a firearm inside Nicholas's toolbox. The video was highly probative to showing that Nicholas was part of the February 14 drug deal.

But even highly probative evidence is subject to exclusion if it is significantly more prejudicial to the defendant. "Evidence is unfairly prejudicial if it induces the jury to decide the case on an improper basis rather than on the evidence presented." United States v. Conner, 583 F.3d 1011, 1025 (7th Cir. 2009). Nicholas again hangs his hat on the fact that the video "was missing more than 30 seconds of accumulative footage." He highlights that the video did not provide any visual evidence that he removed anything from the toolbox or carried anything in his hands as he entered Denny's house. Defense counsel was free to make those arguments in his closing argument, but the jury was equally free to draw reasonable inferences from the video and other admitted evidence. See United States v. Keskes, 703 F.3d 1078, 1088 (7th Cir. 2013) ("[T]he jury can draw reasonable inferences  [*18] and use their common sense in assessing the evidence."). It was reasonable to infer from a video showing Nicholas open and close the toolbox that he pulled something out of it. The firearm found in the toolbox soon after Nicholas again accessed it supports the inference that the "something" he pulled out was actually a gun. Common sense would counsel him not to carry the gun or drugs in plain view, so we decline to draw much from the fact that he carried nothing in his hands. There is nothing about the video that would lead the jury to base its decision on anything other than the evidence presented.

Moreover, the video was not likely to confuse or mislead the jury. Nicholas argues that the video misled the jury into believing that his "mere presence" implicated him in the crimes of conspiracy and possession of a firearm. But the evidence suggested that Nicholas was more than just present at the scene. In addition to driving to Denny's residence, he was in the house when the drug deal occurred and appeared to access the toolbox where, immediately afterwards, a large amount of money and a gun were found. A reasonable juror could conclude that Nicholas actively participated in the drug  [*19] deal on February 14. The video was properly admitted because it was probative of Nicholas's guilt, and the probative value was not substantially outweighed by the danger of unfair prejudice or misleading the jury.


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