Commercial Litigation and Arbitration

YouTube: Video Authenticated by Witness Who Recognized Person (Who Admitted Being in Recent Video) — Wit. Needn’t Know Circs of Recording — Viewer May Assume Items in Non-Prof’l Video Are Real, Not Props—Under 403, Only Still Photos Admitted

United States v. Washington, 2017 U.S. Dist. LEXIS 136220 (N.D. Ill. Aug. 21, 2017):

The United States of America (the "Government") has charged Defendant Darrius Washington with one count of unlawful possession of a firearm by a felon. [See 1.] Before the Court are the Government's consolidated motions in limine [48] and Defendant's twelve motions in limine [35; 36; 37; 38; 39; 40; 41; 42; 43; 44; 45; 46]. For the reasons set forth below, the Government's motion [48] is granted in part and denied in part, and Defendant's motions [35; 36; 37; 38; 39; 40; 41; 42; 43; 44; 45; 46] are granted in part, stricken in part, and denied in part. This case remains set for a jury trial to commence on August 28, 2017.

I.  Background

On May 12, 2016, two Chicago Police Department officers observed Defendant Darrius Washington on the corner of East 84th Street and South Buffalo Avenue. As the officers approached the corner in their unmarked squad car, the Government alleges that Defendant threw a high-polished, stainless steel gun into the fenced yard of a residential building a few feet away. Defendant started walking away, but was arrested. A firearm was recovered from the fenced yard. Defendant later told police that one of his friends had thrown the gun. [*2]  Defendant is set to go to trial before a jury on August 28, 2017, and both sides have filed several motions in limine.

II.  Government's Motions in Limine

A. Defendant's Music Video (Motion 1)

The Government seeks to admit a music video posted on YouTube on February 18, 2016 that the Government believes shows Defendant and several other men holding and pointing firearms at the camera. The video, which the Court has viewed in camera, depicts at least two firearms: a smaller, silver-colored high-polish pistol and a larger assault rifle comparable to an AK-47. The song is called, "Hang with Me," and the artist is "King Coke." The song's lyrics refer to drugs, guns, and gangs, among other things. The Government's motion attaches still-frames from the video, including two that appear to show Defendant holding this pistol and one that shows a close up of the pistol while it is held by someone else. According to the Government, this gun and the gun recovered by police on May 12 are the same. [48, at 5.] Both have "engraved markings on the slide immediately to the right of the blemish or alteration; raised front and rear sight posts; dark-colored grips; exposed hammers; ejection ports located [*3]  on right side of slide; and trigger guards with similar designs." Id. at 4. The Government seeks to admit (1) the YouTube video; (2) the still-frames from the video; and (3) testimony regarding the similarities between the gun in the video and the gun recovered by police. Id. at 5. The Government argues that it wants to admit this evidence to show "that Defendant actually had the ability to exercise control over, and did in fact exercise control over, the exact same pistol both in the video and when CPD arrested him in May." Id.

Defendant opposes this request on three main grounds. First, he claims that the Government cannot authenticate this video under Federal Rule of Evidence ("Rule") 901 or that the gun depicted is "a real gun as opposed to a prop or toy gun." [54, at 2.] Second, he contends that this evidence is improper propensity evidence barred by Rule 404. Third, he argues that the video's portrayal of Defendant as "violent," a "gang member," and a "drug user" is unfairly prejudicial in ways that vastly outweigh any probative value from this evidence. [38, at 2.] The Court addresses each argument in turn.

1. Authenticity

Authentication under Rule 901 requires the proponent of the evidence to "produce evidence sufficient to support a finding that [*4]  the item is what the proponent claims it is." Fed. R. Evid. 901. "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." United States v. Fluker, 698 F.3d 988, 999 (7th Cir. 2012). Evidence can be authenticated through testimony from a "person with knowledge" or testimony about the "appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances." Fed. R. Evid. 901(b)(1), (4). Circumstantial evidence can also be sufficient. Fluker, 698 F.3d at 999.

The Government proposes two ways to authenticate this video. Originally, it planned to offer testimony form a law enforcement officer who watched this video on YouTube, recognized Defendant, downloaded the video, and wrote a report on these events. [49, at 17.]

Starting with the law enforcement officer, Defendant told officers during his post-arrest interview that he had been in a music video recorded about a month before his arrest in which guns were featured. According to the Government, a law enforcement witness will testify that he saw this video on YouTube, and Defendant and the gun appear in the video. At the time of this opinion, a copy of this video can still be found on YouTube. [*5]  Taken together, this direct and circumstantial evidence is sufficient to satisfy the prima facie showing of genuineness required for admissibility under Rule 901. Courts have accepted similar authentication efforts of YouTube videos.1 See United States v. Broomfield, 591 F. App'x 847, 851 (11th Cir. 2014) ("[T]he government made out a prima facie case that this YouTube video is what the government purports it to be-a video of [defendant] in possession of a firearm."); Carucel Investments, L.P. v. Novatel Wireless, Inc., 2017 WL 1215838, at *19 (S.D. Cal. Apr. 3, 2017) (finding authentication of a YouTube video where "the video itself includes information showing Sprint as the source of the commercial, and [defendant's] former CTO * * * testified at his deposition about the existence of such a commercial").

1 The Government did not provide a certification from a YouTube record custodian under Rule 902(11), and thus cannot rely on that authentication method. See United States v. Hassan, 742 F.3d 104, 133 (4th Cir. 2014) ("In establishing the admissibility of those exhibits, the government presented the certifications of records custodians of Facebook and Google, verifying that the Facebook pages and YouTube videos had been maintained as business records in the course of regularly conducted business activities.").

Defendant's arguments to the contrary are unavailing. Defendant does not argue or provide reasons why the Court should think that it is not him in the video or that the video is a fake. Rather, he contends that the Government cannot properly authenticate this video because its proffered witness (1) was not present for the recording; (2) cannot testify about the circumstances under which it was filmed, such as where or when it was record; and (3) lacks personal knowledge about who operated the camera to film the video, what camera he or she used, or whether [*6]  the video was altered after filming. [67, at 4.] While a witness with such knowledge could authenticate this video, Rule 901 does not require it. See, e.g., United States v. Cejas, 761 F.3d 717, 725 (7th Cir. 2014) (rejecting the argument that "Agent Wheele was not the proper person to establish the genuineness of the video because he watched a live feed of the video and did not personally witness the events the recording captured"); Asociacion De Periodistas De Puerto Rico v. Mueller, 680 F.3d 70, 79 (1st Cir. 2012) (rejecting authenticity challenge where plaintiff characterizes videos as "incomplete" and "extensively edited," but "make no claim of (or offer any reason to suspect) fraud or tampering, nor do they say that the videos do not show actual footage of the incident in question"); United States v. Damrah, 412 F.3d 618, 628 (6th Cir. 2005) ("Evidence of how the tapes were made and handled prior to their seizure is not required."); United States v. Clayton, 643 F.2d 1071, 1074 (5th Cir. 1981) ("A witness [*7]  qualifying a photograph need not be the photographer or see the picture taken; it is sufficient if he recognizes and identifies the object depicted and testifies that the photograph fairly and correctly represents it."). In fact, evidence that is found by someone else is routinely authenticated.2 See United States v. White, 639 F.3d 331, 337 (7th Cir. 2011) ("[A]t trial the government presented the demand note as a note recovered from [defendant's] rental vehicle. And the government presented evidence, in the form of testimony from the officer who recovered the note, establishing that that was exactly what the note was. Thus, the government properly authenticated the note."); United States v. Edington, 526 F. App'x 584, 591 (6th Cir. 2013) (holding authentication satisfied "by offering testimony from an investigator who was present when the video was retrieved and can describe the process used to retrieve it").

2 This is not a case where the Government created the recording. Cf. United States v. Eberhart, 467 F.3d 659, 666-67 (7th Cir. 2006) (recorded phone conversations).

Defendant's argument about whether the Government can "prove" that the gun in the video is real rather than a toy [54, at 2] conflates the admissibility threshold under Rule 901 with issues of "true authenticity." Fluker, 698 F.3d at 999; see also United States v. Salcido, 506 F.3d 729, 733 (9th Cir. 2007) (explaining that where defendant "does not contest that * * * [the photographs] appear to be child pornography; rather, he asserts that the government failed to present evidence that [*8]  the files depicted an actual minor," his argument was "more properly considered a challenge to the sufficiency of the evidence" than "as an issue of authenticity"). To satisfy Rule 901, the Government need only make a "prima facie showing of genuineness." Fluker, 698 F.3d at 999. It is up to the jury to decide ultimately whether the gun in the video is real, Defendant is the person shown in the video, and the gun depicted is the same as the one recovered by police. Defendant is free to suggest other interpretations of this evidence, but his mere assertion that the gun depicted might be fake is insufficient to overcome this showing.

Typically, as is true in this case, there are "substantial differences in the facts and circumstances of [a] YouTube video and professional movies." United States v. Johnson, 2014 WL 241927, at *4 (E.D. Wis. Jan. 22, 2014) ("It is simply unreasonable to conclude that, because the movie industry employs substantial resources to obtain realistic props, a homemade video posted to YouTube must also use prop weapons."). Defendant's video appears to have been filmed in one room on a shaky camera and employs minimal graphics and editing. "Given the production value [*9]  of the video, which appears to have been filmed on an iPhone or similar widely-available camera (not with a professional camera) and which also appears to have been shot [in someone's living room] (not on a professional set), it is reasonable for a viewer to conclude that no expense was taken to obtain realistic prop guns." Id. The visual elements of the video, its minimal production quality, and the manner in which people hold the gun in the video (suggesting it possesses weight and is not merely hollowed-out plastic) all support the Government's prima facie showing that the video depicts a real gun. Of course, Defendant is free to try his argument that the video depicts is a toy gun with the jury.3

3 Defendant's argument that he mentioned music videos to police, but he did not "confirm[] the existence of, or that he appeared in, the particular video that the government seeks to introduce," is unpersuasive. [67, at 6 (emphasis added).] Defendant's post-statement that [*10]  he appeared in a music video shortly before his arrest in which a gun was shown is circumstantial evidence supporting the authenticity of a music video shot three months before his arrest in which he is seen holding a gun. The Government does not need Defendant to affirmatively authenticate the video as the specific one he referenced in his post-arrest statements under Rule 901.

Likewise, this case is not like Griffin v. Bell, 694 F.3d 817 (7th Cir. 2012), in which the Seventh Circuit affirmed the trial court's exclusion of a video and related still photos. In Griffin, one of the plaintiff's friends shot a two minute video of a physical altercation involving plaintiff, yet this video did not show the beginning of the fight and other parts of the fight were not visible, meaning that the video "showed only parts of the scuffle that appeared favorable to [plaintiff]." Id. at 820. The district court excluded the video because the person who recorded it could not be found and the video's selective presentation made it unfairly prejudicial. On appeal, plaintiff contended that he could authenticate it, but the Seventh Circuit disagreed. In this case, "[t]here were many valid reasons to call into question the authenticity of the video and still photographs, and many questions about the video that could be answered only by the student who produced the recording." Id. at 827. Because plaintiff "could not say how the video was made, or whether it had ever been altered," he was not a "witness with knowledge" [*11]  under Rule 901(b)(1).

Here, allegations that this music video was edited have nothing to do with its authenticity. This is not a video of Plaintiff's arrest-the incident at the heart of this trial. Issues related to the natural sequence of images in the music video, the videographer's perspective, and whether he or she could alter or omit any other details based on the type of camera used are irrelevant to the main question of whether this is a video from YouTube of Defendant holding a gun. In other words, whether the video was selectively edited has little bearing on whether the images are what the Government contends they are. Indeed, Defendant fails to explain what difference it makes to the video's authenticity in this case if it was shot with a smartphone or a camcorder. The Government can satisfy its burden under Rule 901 with the proffered law enforcement witness.

Defendant offers no argument that this witness's testimony is insufficient to authenticate the YouTube video under Rule 901. [78.] It plainly is. See Fed. R. Evid. 901(b)(1). In fact, this witness meets most, if not all, of Defendant's objections to the officer's testimony. Accordingly, whether in reliance on this witness or not, the Government has satisfied Rule 901.

2. Character [*12]  Evidence

Under Rule 404(b) "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Said differently, evidence of a prior bad act offered to show a defendant's character cannot be used to show that defendant acted in conformity with that character trait in the instant offense. However, Rule 404(b) permits use of this prior act evidence for another purpose unrelated to a propensity for wrongdoing, including "proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Fed. R. Evid. 404(b)(2). The proponent of the evidence must first show "that the other act is relevant to a specific purpose other than the person's character or propensity to behave in a certain way." United States v. Gomez, 763 F.3d 845, 860 (7th Cir. 2014). Although "[o]ther-act evidence need not be excluded whenever a propensity inference can be drawn," its relevance to the permitted purpose "must be established through a chain of reasoning that does not rely on the forbidden [propensity] inference." Gomez, 763 F.3d at 860. District courts "should not just ask whether the proposed other-act evidence is relevant to a non-propensity purpose but how exactly [*13]  the evidence is relevant to that purpose." Id. at 856. Once this initial showing is made, the Court must assess whether the probative value of the other-act evidence is substantially outweighed by the risk of unfair prejudice under Rule 403. Id. at 860. "The court's Rule 403 balancing should take account of the extent to which the non-propensity fact for which the evidence is offered actually is at issue in the case." Id.

The Government's purpose for admitting this video is to show that Defendant had recent access to the same gun that was ultimately recovered by police on May 12, 2016. [48, at 5.] That inference is disconnected from any propensity-like character trait (e.g., Defendant possessed a gun in the past, so was more likely to possess a gun on May 12). This evidence is directly relevant to rebut the defense that Defendant could not be the person who possessed the recovered gun. The Seventh Circuit has allowed admission of similar evidence in felon in possession cases "at least where the prior possession was recent and involved the same gun." United States v. Miller, 673 F.3d 688, 695 (7th Cir. 2012); United States v. Stork, 487 F. App'x295, 297 (7th Cir. 2012) ("Testimony indicating that [defendant] recently had possessed the same gun found in the van was evidence of his charged crime, not propensity evidence."); United States v. Canady, 578 F.3d 665, 671 (7th Cir. 2009) ("So if [*14]  the government could show that [defendant] used the same firearm shortly before the accident, that fact would also support a guilty verdict for [defendant's] illegal possession charge."). 

The Seventh Circuit has also explained that different concerns are implicated when the gun possession is "further removed in time" or "the prior possession was of a different gun." Miller, 673 F.3d at 695. But those concerns do not apply here. The YouTube video was uploaded on February 18, 2016, and the Government alleges that the gun possessed and recovered on May 12 was the same gun. Id. ("Here, the witness testified that [defendant] possessed a particular gun two months before the date he was charged with being in possession of the same gun-found under his mattress."). Evidence that Defendant had access to the same gun he is charged with possessing does not rely on an inference about Defendant's propensity to possess firearms. As in Miller, this video showing Defendant's "recent possession of the same gun was directly relevant evidence of the charged crime, not propensity evidence." Id.

Defendant argues that Miller is inapposite because the prior act was attested to by an eyewitness who "personally saw" the defendant with [*15]  the same gun prior to his arrest, whereas here the Government is relying on an Internet video. [54, at 2.] That is certainly a difference. Defendant fails to explain, however, why that difference matters under Rule 404(b). Miller's analysis does not turn on the specific form of the prior gun possession evidence (e.g., video, photograph, letter, prior conviction, or eyewitness account). See United States v. Cassell, 292 F.3d 788, 790-91 (D.C. Cir. 2002) (allowing evidence under Rule 404(b) of defendant's prior conviction involving the same gun and that his car had been recently impounded and the same gun "fell from underneath the rear bumper"); Miller, 673 F.3d at 695 (citing Cassell favorably). Indeed, it is hard to see how the fact that the Government has a video of Defendant possessing this gun makes this evidence more likely to rest on a propensity inference than testimony from a live witness that Defendant possessed the gun. The form of the evidence does not matter under the text of Rule 404 either. Miller is squarely on point and confirms that Rule 404(b) is not a barrier to the admission of this video and its related stills.

Again, the Government's purpose is to show that Defendant had access to the gun that he possessed in the instant offense. This access did not depend on ownership rights and is not [*16]  ruled out because someone else ultimately owns the gun.  The Government does not have to prove that the guns are, in fact, the same beyond a reasonable doubt as a threshold to admissibility. Accord United States v. McGlothin, 705 F.3d 1254, 1259 n.7, 1265-66 (10th Cir. 2013) (affirming admission of prior gun incident under Rule 404(b) where witness from the prior incident "testified [that] the Glock did not 'appear to be different in any way' from the pistol [defendant] used to assault her," but she "could not positively say it was the same gun" because "no reasonable juror would have perceived the purpose of [witness's] testimony for anything other than demonstrating [defendant] possessed the Glock during a time temporally proximate to the possession alleged in the indictment" and thus "[t]his testimony then does not have anything to do with propensity"). The Government need only show that this evidence is admitted for a permissible, non-propensity purpose under Rule 404(b). It has done so. See Miller, 673 F.3d at 695.

3. Rule 403 Balancing

Consistent with Gomez, the Court must also evaluate this evidence under Rule 403. There are a number of potential issues to balance with this evidence. The Government's sole claimed purpose for admitting this evidence is to show Defendant's access to the same weapon that [*17]  he was later charged with possessing. The lyrics of the song and the words "King Coke" that flash on the screen have nothing to do that purpose. The fact that the video depicts seven or eight men-some of whom are wearing face masks-jumping and flashing what may be gang signs at the camera also is not relevant to whether Defendant had access to the recovered gun. Moreover, the video gives roughly equal time to a distinct larger semi-automatic rifle, which could enable the jury to draw an impermissible propensity inference. See Miller, 673 F.3d at 695 ("If the prior possession was of a different gun, then its value as direct or circumstantial evidence of the charged possession drops and the likelihood that it is being used to show propensity to possess guns rises considerably."). In short, much of this video is irrelevant to the Government's purpose and likely to be unfairly prejudicial and confuse the issues that the jury must decide.

The same cannot be said of the still-photographs extracted from the video. Two of those pictures show Defendant holding this smaller, silver-colored high-polish pistol. The third provides a close-up of the same gun when it is held by someone else. These pictures avoid the most [*18]  inflammatory and irrelevant features of the video related to drugs, gangs, or aggressive and potentially intimidating conduct and instead focus in on this evidence's probative value: Defendant's access to this gun and the characteristics that the Government believes show it is the same gun recovered by police. Thus, these pictures are much more tailored to the Government's purpose for offering this evidence, avoid the potential for propensity inferences related to showing the other gun, and present significantly less unfair prejudice (if any) than the full video. Thus, the Court denies the Government's request to admit the entire YouTube video, but grants its request to admit photograph stills extracted from the video4 as well as testimony regarding the similarities between the gun in the video and the gun recovered by police (which is unchallenged by Defendant).5

4 The [*19]  Government's motion contains only three video still-frames [48, at 3-4]. If the Government plans to use any other still-frames from the video, it must make a request to do so and submit copies of those pictures for review by Defendant and the Court as soon as possible and well in advance of trial.

5 The Government has also proposed submitting short video clips without audio of the scenes in which Defendant can be seen holding the gun. [77, at 4.] Even assuming these clips could be edited in a way that avoids the other unfairly prejudicial aspects of the video, the Court does not believe this would aid juror comprehension. The video is fast moving and the camera moves rapidly back and forth among subjects. One- or two-second video clips are likely to be too confusing to follow, and the Court declines to permit this form of evidence under its trial management authority pursuant to Rule 611.


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