YouTube Video Authenticated by Circumstantial Evidence Identifying Individual and Items Depicted, and Establishing Where and Roughly When Video Recorded, without Evidence from YouTube Personnel

United States v. Broomfield, 2014 U.S. App. LEXIS 22670 (11th Cir. Dec. 3, 2014):

After a jury trial, James Franklin Broomfield, Jr. appeals his conviction and 180-month sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). On appeal, Broomfield argues, inter alia, that the district court abused its discretion in determining that the video clip depicting him in possession of a firearm was properly authenticated. ***

I. TRIAL EVIDENCE

A federal grand jury indicted Broomfield on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), punishable under 18 U.S.C. § 924(e) because Broomfield had three prior convictions for serious drug offenses. Specifically, the indictment charged that Broomfield knowingly possessed in and affecting commerce, an AR-15 rifle and PMC .223 ammunition, on or about January [*2]  21, 2011. Broomfield pleaded not guilty and went to trial. Below is the trial evidence relevant to the issues on appeal.

A.  The YouTube Video

The government's evidence of Broomfield's possession of the AR-15 rifle and PMC .223 ammunition included a copy of a video of Broomfield discharging the weapon at a firearms store and shooting range called Fowler Firearms.

Prior to the trial, the government moved in limine for the district court to rule on the admissibility of this video. The government detailed the circumstantial evidence that it believed authenticated the video. The district court declined ruling on the motion, finding that "testimony from various witnesses will be necessary and the issue cannot be determined without a trial of the general issues."

At trial, Federal Bureau of Investigation special agent Ryan Davis testified that while investigating the defendant for suspected violations of federal firearms laws, he saw a YouTube video of Broomfield, whom Agent Davis recognized from a previous traffic stop. Agent Davis stated that he made an exact copy of the video, which the government presented as its Exhibit 1. When Agent Davis [*3]  began testifying to the content of the video, Broomfield objected. After viewing the video outside the presence of the jury, the district court did not allow Agent Davis to testify to the content of the video because it was not properly authenticated. Agent Davis was permitted only to testify that he observed Broomfield in the video.

Following Agent Davis, Fowler Firearms's manager, Jon Dezendorf, testified that Broomfield was a Fowler Firearms member, that on January 21, 2011, Broomfield purchased two boxes of PMC .223 ammunition, and that he had not purchased that ammunition at any other time. Dezendorf stated that the only firearm Fowler Firearms rented to customers at the time that used PMC .223 ammunition was the AR-15 rifle.1 Dezendorf also testified that he saw Agent Davis's copy of the YouTube video and that Dezendorf knew that the video was filmed at Fowler Firearms's gun range. The district court did not allow Dezendorf to testify to the contents of the video beyond his identification in the video of Fowler Firearms, a box of PMC .223 ammunition, a Fowler Firearms gun box, and targets sold by Fowler Firearms. The video was [*4]  still not allowed into evidence.

1       Fowler Firearms did not have a receipt of the AR-15 rifle rental because on Fridays it allows men to rent firearms for free and does not document those rentals; January 21, 2011 was a Friday.

Joshua Hackman, who had worked at Fowler Firearms for ten years, also testified to establish the authenticity of the YouTube video. Hackman testified that he recognized Fowler Firearms as the location of the video from numerous distinguishing features. He also stated that the video showed one of Fowler Firearms's rifle rental bags, and he identified the rifle in the video as an AR-15 rifle, specifically, a Bushmaster. Additionally, Hackman testified that he could discern the approximate date the video was taken. Hackman explained that the video showed side deflectors and lights on the gun range, which Fowler Firearms had installed in late 2010 or early 2011. Hackman also testified that Fowler Firearms paints its floors and walls at the beginning of the season, and the freshly-painted floor and walls seen in the video indicated that the footage was filmed close to the start of 2011. The district court, again, did not allow the video into evidence because it did not think the government had adequately established its authenticity.

The government then called Larry Jais to establish the approximate date the video was filmed. Jais operated a maintenance business that provided repair and maintenance to Fowler Firearms. Jais testified that he installed the lighted baffles shown in the video, in late September or early October of 2010.

Following this testimony, outside the presence of the jury, the government sought to admit the video of Broomfield shooting the AR-15 rifle, contending that video was now sufficiently authenticated by the circumstantial evidence summarized above. The government, with further testimony of Agent Davis, sought to admit Google records to establish the date the video was uploaded; the district court stated it would consider the Google records only for the hearing to determine whether to admit the video, and ultimately did not admit the records. The district court echoed Broomfield's concern that the government had not presented evidence that the video had not been altered or manipulated.

After recessing to review relevant case law, the district court admitted the video into [*6]  evidence, stating it was "satisfied, without considering the Google records, that the government has established circumstantially": (1) the date the video was taken; (2) that Broomfield appears in the video; and (3) that the video is authentic-"that is, that [the video] is what they claim it is, and that is a videotape of the defendant in the possession of the firearm on or about January 21, 2011." The government then published the copy of the YouTube video to the jury, over Broomfield's objection.2

2       While the district court overruled Broomfield's authentication objection to the admission of the video, it sustained Broomfield's objection to the transcription of the words spoken in the video, which the government had inserted below the image.

The government recalled Agent Davis to the stand and he testified that the video showed Broomfield discharging the AR-15 rifle, with two boxes of PMC .233 ammunition nearby.

***

III.  DISCUSSION

A.  Authentication of the Video Clip

The "admission of evidence is committed to the sound discretion of the trial court." United States v. Cole, 755 F.2d 748, 766 (11th Cir. 1985). Accordingly, we review the district court's decision to admit evidence for abuse of discretion. Id. We will not overturn a district court's determination that a piece of evidence has been properly authenticated unless "there is no competent evidence in the record to support it." United States v. Caldwell, 776 F.2d 989, 1001 (11th Cir. 1985) (internal quotation marks omitted).

Broomfield contends that the district court abused its discretion by admitting the YouTube video into evidence. We disagree and explain why.

Before an item of evidence may be admitted, Federal Rule of Evidence 901(a) requires it to be authenticated with evidence "sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). Proper authentication requires only that [*11]  the proponent of the evidence make out a prima facie case that the proffered evidence is what it purports to be. United States v. Belfast, 611 F.3d 783, 819 (11th Cir. 2010).

Evidence may be authenticated by its "appearance, contents, substance, internal patterns, or other distinctive characteristics . . . taken together with all the circumstances." Fed. R. Evid. 901(b)(4). Authentication may be established "solely through the use of circumstantial evidence." United States v. Smith, 918 F.2d 1501, 1510 (11th Cir. 1990). Once such a showing has been made, the court may admit the evidence, and the ultimate question of its reliability is reserved for the fact finder. Belfast, 611 F.3d at 819.

Thus, the question before us is whether there is any competent evidence to support the district court's determination that the government made out a prima facie case that this YouTube video is what the government purports it to be-a video of Broomfield in possession of a firearm. We conclude that there is ample evidence in the record that the video depicted Broomfield in possession of a firearm. The government's evidence identified the individual in the video as Broomfield, established where and approximately when the video was recorded, and then identified the specific rifle and ammunition depicted in the video. [*12]  Because authentication may occur solely through the use of circumstantial evidence, the government met its burden of presenting a prima facie case that the video depicted Broomfield in possession of a firearm.

Relying on United States v. Biggins, 551 F.2d 64 (5th Cir. 1977), Broomfield argues that the video was not adequately authenticated because there was no testimony establishing that the recording equipment was reliable or that the video was not altered or staged. Broomfield's reliance on Biggins is misplaced. The Court in Biggins stated that to authenticate a sound recording made by investigators during the government's electronic surveillance, the prosecution had to establish: the competence of the government's recording operator; "the fidelity of the recording equipment"; "the absence of material deletions, additions, or alterations" in the recording; and "the identification of the relevant speakers." Biggins, 551 F.2d at 66. The Court applied these factors to a recording that the government created, and this was critical to the Court's analysis. Id. The Court stated that this "burden properly falls to the government because it has access to such information in a way the criminal defendant does not." Id.

Here, where the government did not make the video, [*13]  but merely found it on YouTube, that particular reasoning does not apply. Indeed, if the Biggins factors were to apply under these circumstances, as Broomfield suggests it should, the prosecution could seldom, if ever, authenticate a video that it did not create. Because the government did not record the video in question, the Biggins factors are inapposite.

In any event, as the Biggins Court recognized, even if one or more of the factors are not satisfied, we are "extremely reluctant to disturb" the district court's decision to admit the recording if other trial evidence establishes it is authentic. See id. at 67. Given the other substantial evidence establishing where and when the video was made and who and what appeared in the video, the district court's decision to admit the video clip was not an abuse of discretion even if the government did not satisfy all of the Biggins factors.

Accordingly, there is competent evidence in the record to support the district court's determination that the video was properly authenticated.

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