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Sixth Circuit Vacates Firearms Possession Conviction; Government Showed Jury Unauthenticated Prejudicial Facebook Video Not Admitted as Evidence

On March 27, 2020, the U.S. Court of Appeals for the Sixth Circuit vacated a firearms possession conviction from the U.S. District Court for the Northern District of Ohio because the Government showed the jury a social-media video of a masked person it alleged was the defendant holding a firearm, without authenticating the video or seeking its admission as evidence.

Terrance Craig was a passenger in an SUV involved in an exchange of gunfire with another vehicle. Police saw Craig toss something into the backseat and recovered a 9 mm handgun with an extended magazine on which they later discovered Craig’s DNA. When arrested, Craig was wearing a shoulder holster. On the way to the police station, an arresting officer said he had seen a Facebook rap video of Craig holding a similar extended-magazine handgun.

Craig was charged with one count of possession of a firearm and ammunition after a felony conviction in violation of 18 U.S.C. § 922(g).

During the trial, both arresting officers told the jury about the rap video, saying it was Craig, and he was wearing the jacket from the video when arrested.

Craig admitted that he was a felon and possessed the firearm. His defense was that he possessed the firearm only long enough to defend himself. He testified he was a backseat passenger when the SUV came under fire. The driver had passed him a holstered gun and told him to defend them. He then put on the holster and fired the handgun over his head out the shot-out rear window.

On cross-examination, the Government announced it would show the video to impeach Craig. Defense counsel objected that the video was unauthenticated, the person wearing the mask in the video was unidentifiable, and it was more prejudicial than probative. The objection was overruled, and both the jury and Craig were shown the video.

Craig testified that he was not the person in the video. He maintained that the jacket differed in features and zipper placement from the one he wore when arrested. The Government never attempted to have the video authenticated or admitted into evidence but referred to it in closing arguments as proving Craig possessed the handgun. During deliberations, the jury sent out a note requesting to see the video again. The judge told them to use their memory.

Craig was convicted, and the conviction enhanced because the possession occurred while he was discharging a firearm over a public road, a felony violation of Ohio Revised Code § 2923.162(A)(3) and (C)(2). He was sentenced to 110 months in prison consecutive to two state sentences.

With the assistance of Cleveland Federal Public Defender Christian J. Grostic, Craig appealed, arguing that the Government had failed to introduce evidence that Craig was the masked person in the video or that it was the same video the officers had testified about.

The Government maintained it could use the video to cross-examine Craig under Federal Rule of Evidence 608(b). The Court rejected this argument, noting that Rule 608(b) permits questioning about an extrinsic document, not publishing a document or video to the jury without authentication. Likewise, evidence used to impeach a witness under Rule 613 still must be authenticated. Further, the Government did not limit its use to impeachment but “doubled down” when it argued to the jury that the video proved prior possession of the firearm. The district court gave no limiting instruction. Thus, the district court abused its discretion by allowing the Government to play the video for the jury, the Court ruled. 

Turning to the issue of whether the error was harmless, the Court stated “We find that the error was not harmless.” The Court explained that the video “was extremely prejudicial” and “was also extremely damaging to Craig’s testimony.” In rejecting the Government’s argument that the error was harmless because there was enough evidence to convict without the video, the Court corrected the Government’s misunderstanding of the law by explaining that the analysis focuses on “whether the error itself had substantial influence.” Smith v. Smith, 166 F.3d 1215 (6th Cir. 1998). The Court observed that during deliberations “the jury’s only question was a request to see the rap video,” which prompted the Court to declare that it’s rare an appellate court has “such a clear indication that one specific piece of evidence likely influenced the jury.”

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Related legal case

United States v. Craig



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