UNITED STATES OF AMERICA, Plаintiff-Appellee, v. TERRANCE CRAIG, Defendant-Appellant.
No. 19-3278
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: January 29, 2020
Decided and Filed: March 27, 2020
File Name: 20a0095p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
Before: MERRITT, CLAY, and BUSH, Circuit Judges.
COUNSEL
ARGUED: Christian J. Grostic, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Michael A. Sullivan, UNITED STATES ATTORNEY‘S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Christian J. Grostic, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Brian S. Deckert, UNITED STATES ATTORNEY‘S OFFICE, Cleveland, Ohio, for Appellee.
OPINION
JOHN K. BUSH, Circuit Judge. A criminal conviction must rest only on admissible evidence. Today, we hold that the Government cannot elide this bedrock principle of our justicе system by publishing for the jury an unadmitted exhibit under the guise of impeachment.
Terrance Craig was involved in a high-speed shootout in the streets of Akron, Ohio and was apprehended wearing a shoulder holster and with gunshot residue on his hands. His DNA was identified on a firearm discovered in the backseat of one of the vehicles. Craig was charged with being a felon in possession of a firearm and took the case to trial. Craig admitted that he possessed a firearm while being a felon but testified that he possessed the gun only long enough to defend himself and his friends during the firefight. On cross-examination, the Government played for the jury a video depicting a masked individual it alleged to be Craig rapping and wielding a firearm that was similar to the gun for which he was charged. Craig denied that he was the masked individual in the video, and the Government did not attempt to introduce the video into evidence. The district court never issued a limiting instruction about whether or how to consider the video, and the Government referenced the video in closing arguments.
Beсause the Government had no legal basis to publish the unadmitted and unauthenticated exhibit to the jury, and because the error was not harmless, we VACATE Craig‘s judgment of conviction and REMAND for a new trial.
I.
On November 26, 2017, Terrance Craig was arrested after firing a gun from a moving vehicle in which he was a passenger. That morning, two police officers, Officer Darrick Ball and Officer Joshua Rivers, had heard gunshots while sitting in the parking lot of a local high school. Officer Rivers drove east to identify the source of the gunshots and observеd a gold SUV driving past him. He activated his lights and pursued the SUV, but it continued at a high rate of speed, running through two red lights and a stop sign.
The vehicle finally came to a stop, at which point an individual that the officers knew to be Craig exited the vehicle. Officer Rivers testified that Craig briefly returned to the vehicle to throw a black object into the backseat, but Craig testified that this did not occur.
Craig then fled on foot and jumped over a chain-link fence before he was caught by Officer Rivers. Craig was wearing a shoulder holstеr underneath his jacket when he was apprehended. Officer Ball transported Craig to the police station, and Ball commented that he had seen a rap video on Facebook which, according to Ball, depicted Craig rapping and holding a
Officers later surveyed the abandoned SUV and disсovered bullet holes in the rear of the vehicle. In the backseat, officers located a 9mm firearm with an extended magazine with a shell casing jammed in the chamber. Also inside the SUV, officers recovered seven 9mm shell casings that had been discharged from the extended-magazine firearm, as well as a .45 caliber bullet. According to Craig, the bullet had been fired from the other vehicle during the shootout, as had several other .45 caliber bullets that struck surrounding houses.
Craig was charged with one count of pоssessing a firearm and ammunition after a felony conviction under
Officers Ball and Rivers both testified at trial about the shootout and Craig‘s arrest. Officer Ball testified about a Facebook rap video he had seen. He claimed that Craig was in the videо wearing the same jacket that he wore when arrested. According to Officer Ball, Craig stated in the video that he “wasn‘t turning himself in until he catch [sic] some bodies.” R. 46 at PageID 268. Officer Rivers also testified that he had seen a video on Facebook with Craig rapping and in the same jacket that he was wearing upon arrest. The Government did not seek to introduce the video into evidence, nor did it show the video to Officer Ball, Officer Rivers, Craig, or the court during the officers’ testimony.
Craig did not dispute that he was a fеlon or that he possessed a firearm. Instead, he asserted that he was justified in possessing the firearm and testified in support of this claim. Craig testified that he was riding in the backseat of the SUV without a firearm when another vehicle made a sudden U-turn and began chasing and shooting at Craig and his friends. Craig testified that the driver, whom he identified as “Booty,” removed the shoulder holster from himself and handed it to Craig, instructing him to return fire in defense. Craig testified that he
Before Craig took the stand, the Government had indicated it would seek to impeach Craig on cross-examination with a video depicting a masked individual rapping and wielding a firearm. Craig‘s counsel objected because the video was unauthenticated, the individual in the video was wearing a mask and could not be identified, and the video was more prejudicial than probative. The Government responded that it was justified in using the video because two officers testified that they had observed a Facebook video of a person they believed to be Craig wearing the same jacket and holding the firearm for which Craig was arrested. The following colloquy between the court and Mr. Deckert (for the Government) then occurred:
The Court: So the person [in the video] has a mask on?
Mr. Deckert: Covering part of his face, Your Honor.
The Court: Well, you can use it.
R. 47 at PageID 405.
During cross-examination, Craig testified that he had never seen a firearm with an extended magazine in his personal life. The Government asked if Craig had ever done raps, to which he responded affirmatively. Over Craig‘s objеction, the Government then played for the jury a rap video depicting a masked individual rapping while holding an extended-magazine firearm. When asked by the Government if he was the masked individual, Craig replied no. In response to Craig‘s denial, the Government did not seek to have the video admitted into evidence as an exhibit, and the court did not issue any instructions to the jury about whether or how to consider the video.
Despite that the video was not in evidence, the Government made pointed reference to it during closing arguments, stating:
And how do you know that he had that gun before, that he had that gun before he got in the car on November 26th? Because you saw it. You saw the Facebook video and you saw him with the gun, waving the gun around, and it looks just like this gun. And he said on cross-examination that that wasn‘t him in the Facebook video. Do you remember that?
Id. at PageID 488.
The jury received its instructions and retired to deliberate. During deliberations, the only thing the jury asked was to see the rap video again. The Government informed the court that the video “wаs not introduced,” but was “just used on cross.” Id. at PageID 499. The court then brought out the jurors and informed them that “[t]he rap video is not admitted into evidence, so what you have to do is just call into your recollection of that.” Id. at PageID 500. The court did not give any other instructions about whether or how to consider the video. The jury then returned a verdict of guilty.
At sentencing, the Government requested a four-level enhancement under section 2K2.1(b)(6)(B) of the Guidelines for “use[] or possess[ion of] any firearm or ammunition in connection with a felony offense.” Specifically, the Government alleged that Craig committed a felony by discharging a firearm over a public road in violation of
Craig‘s counsel then objected because the district court had not considered whether Craig acted in self defense when he violated
[T]he testimony in the trial was a little bit different. It was not resolved one way or the other who commenced the shooting, whether it was Craig‘s car or Craig himself or the other car or how that exactly occurred. But based upon everything I had before me, I think it‘s pretty clear that [
section 2923.162(A)(3) ] applies.
Id. at PageID 600. The court went on to state “I‘m going to add too, I don‘t want to get into too much detail аbout judging credibility, but Mr. Craig‘s story clearly wasn‘t believed by the jury, and just the idea of handing the holster over and things like that were pretty incredible statements.” Id. at PageID 601.
Applying the four-level enhancement produced an advisory Guideline range of 110 to 120 months in prison, and the court sentenced Craig to 110 months to be served consecutively with two state sentences.
Craig appealed. He first contends that the court erred by allowing the Government to play the rap video for the jury because it was not authenticated. He аlso argues that the district court erred because it applied the four-level sentencing enhancement without considering whether Craig acted in self defense.
II.
We review the district court‘s evidentiary rulings, including rulings on whether a given piece of evidence was properly authenticated, for abuse of discretion. See United States v. Morales, 687 F.3d 697, 701-02 (6th Cir. 2012); United States v. DeJohn, 368 F.3d 533, 542 (6th Cir. 2004).
To authenticate an exhibit, “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”
Craig argues that the district court erred by allowing the Government to play to the jury the video of a masked individual rapping and holding a firearm. The error occurred, Craig
The Government never attempted to authenticate the video, and Craig, the only witness to whom the video was shown, denied that he was the masked individual. The Government never showed the video to either Officer Rivers of Officer Ball during its case in chief, and it never attempted to establish that the video the jury saw was the same video they had seen. The video therefore was unauthenticаted.
The Government does not claim it ever authenticated the video, but contends that it did not need to do so because the video was used to cross-examine Craig under
Except for a criminal conviction . . . extrinsic evidence is not admissible to prove specific instances of a witness‘s conduct in order to attack or support the witness‘s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose character the witness being cross-examined has testified about.
We have explained that there must be a “‘good faith basis’ for cross-examination under
The Government‘s reliance on
Accordingly, and unsurprisingly, none of the
The Government‘s reliance on
Likely recognizing these difficulties, the Government at oral argument described its use of the video as a hybrid of
Instead, what the Government describes as a hybrid of
The Government could not prevail under this approach either. First, although we have on at least one occasion permitted a party to impeach a witness‘s testimony by introducing extrinsic еvidence to contradict its contents, see Markarian, 967 F.2d at 1101-03, we have expressed skepticism as to whether impeachment by contradiction is permissible in this circuit, see
Even if the Government were somehow permitted to show the video to the jury for impeachment, however, our analysis would be unchanged because the jury was never instructed to consider the video for impeachment purposes only. Further, the Government doubled down in its closing argument when it invoked the video not as evidence that Craig‘s testimony was not credible, but as evidence that he had possessed the gun before the day of the shootout. The evidеnce was not actually used for the limited purpose of impeachment.
To be sure, the jury received a general instruction that evidence “includes only what the witnesses said while they were testifying here under oath, the exhibits that I allowed into evidence, and the stipulations that the lawyers and the parties agreed to.” R. 47 at PageID 441. However, when the jury asked to see the video during deliberations, the court instructed: “what you have to do is just call into your recollection of that.” Id. at PageID 500. Although we will prеsume jurors will follow the instructions they receive, e.g., United States v. Neuhausser, 241 F.3d 460, 469 (6th Cir. 2001), we cannot presume that a juror would parse these competing instructions and choose to follow the generic instruction about evidence generally rather than the specific (and unrestricted) instruction that they should call into their recollection the contents of the video.
The Government argues in the alternative that although the video was not authenticated, it could have been. Specifically, the Government contends that the video could have been authenticated by the testimony of Officer Rivers and Officer Ball in which they discussed a rap video that shared common features with the video played to the jury. We reject this argument because the Government provides no authority under which an appellate court could rule on authentication in the first instance. Regardless of whether the Government could have authenticated the document, the fact remains that it did not.3 Further, Craig points out that the Government‘s arguments аbout authenticity are not as airtight as it suggests. Both Officer Rivers and Officer Ball testified that Craig was wearing the same jacket when he was arrested as the masked individual in the video. But, Craig contends, the jackets are actually different, with different zippers and features. It is the job of the trial court to address these competing factual claims before permitting the jury to see the exhibit. That was not done here.
Finding that the district court erred in allowing the Government to play this video for the jury, we turn to whether the error was harmless.
III.
The Government contends that any error in showing the video to the jury was harmless because there was overwhelming evidence of Craig‘s guilt. The other proof included the observations of two officers that he threw the firearm into the vehicle, that he was wearing the holster when he was apprehended, that his DNA was found on the gun, and that there was gunshot residue on his hands.
This court applies the harmless-error test to evidentiary errors. United States v. Baker, 458 F.3d 513, 520 (6th Cir. 2006). “[I]f one cannot say, with fair assurance, . . . that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.” Kotteakos v. United States, 328 U.S. 750, 765 (1946); accord, e.g., United States v. Haywood, 280 F.3d 715, 724 (6th Cir. 2002); see also United States v. Johnson,
We find that the error was not harmless. First, the video was extremely prejudicial. If the jury believed the individual was Craig, the video showed him possessing a firearm with an extended magazine, precisely the crime for which he was being tried. The rap cоntained violent and profane language, and the individual‘s body language was menacing.
The video was also extremely damaging to Craig‘s testimony. There was no question that Craig possessed a firearm, and his whole case rested on his justification defense. That defense turned on a credibility determination; only if the jury believed his testimony that he possessed the gun no longer than necessary to ward off the attackers could it find his possession was justified and declare him not guilty. But, if the jury believed the man in the video was Craig, it сould find that Craig previously owned or possessed the extended-magazine firearm for which he was ultimately charged. Prior ownership or possession of the firearm strongly refutes his version of events, in which the firearm was thrust upon him by a third party in the heat of a firefight. The Government emphasized this precise point in closing arguments.
Second, “[t]he inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence.” Smith v. Smith, 166 F.3d 1215 (6th Cir. 1998) (table) (quoting Kotteakos, 328 U.S. at 765). During deliberation, the jury‘s only question was a request to see the rap video. Rarely does an appellate court have such direct insight into the inner workings of deliberations or such a clear indication that one specific piece of evidence likely influenced the jury.
Social media is a ubiquitous facet of modern life and provides law enforcement an unfiltered view into the daily affairs and personal world of a potential suspect. But social media platfоrms, and the videos they contain, are subject to manipulation and cannot easily be verified. They contain images and videos depicting thousands of individuals. Those individuals might look similar to thousands of different defendants. And, even if they do not, they could be
The Government may have the right to play the video for the jury, but it must do so the right way—through proper authentication and other compliance with the Federal Rules of Evidence.
Having determined that a new trial is required, we do not reach the issue of Craig‘s sentencing.
IV.
Accordingly, we VACATE Craig‘s conviction and REMAND for a new trial.
JOHN K. BUSH
UNITED STATES CIRCUIT JUDGE