This August 1, 2014, U.S. Court of Appeals (Seventh Circuit) decision set a solid precedent on the admissibility of video surveillance, even when that recorded video surveillance feed has technical issues.

So much of the video surveillance industry is set so that in the event one needs to prove to a legal authority something did or did not happen, the video can be used.

This legal decision sets the groundwork for future legal challenges and how video can be admitted into evidence.

In U.S. v Cejas, the Appellants (the original defendants in the case) claimed "the government did not properly authenticate" the video and the government claimed "intermittent skips in the footage did not render the entire video inadmissible."

Although this case did not specifically challenge the Chain-of-Custody aspects of the video, the question of the video’s genuineness was challenged.

The video’s "intermittent skips" —most likely caused by technical computer issues— was also called into question.

"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. Federal Rules of Evidence, 901."

This Appellant Court’s decision relied on Eberhart for much of the admissibility.

"This evidence corroborates the events the video recorded and supports a finding that it was a true and accurate representation of what happened outside [defendant’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)"

There is much legalese below but a majority of the text of the Appellant Court’s decision is shown here to share the legal decisions how recorded video surveillance is handled in court.

Students of the law and those interested in how video surveillance is used and challenge in court is an important aspect to the overall usage of video surveillance solutions.

 
United States Court of Appeals,Seventh Circuit.
Nos. 12–3896, 13–1034.
Decided: August 1, 2014

Before BAUER, WILLIAMS, and SYKES, Circuit Judges. William L. McCoskey, Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff–Appellee. Brent L. Westerfeld, Attorney, Indianapolis, IN, for Defendants–Appellants.

Brothers Constantino and Nicholas Cejas’1 Valentine’s Day drug dealing activities attracted the attention of law enforcement officials. As a result, they were each convicted of conspiring to distribute drugs, possessing and distributing 50 grams or more of methamphetamine, and possessing a firearm to further their drug activity that day. Constantino was also convicted on charges related to his drug activities on February 8, 2011. The brothers appeal their convictions.

They argue that the video showing them at Brian Denny’s home was inadmissible because the government did not properly authenticate it, but the evidence supports the finding that the video was an accurate depiction of the events that unfolded on February 14 and intermittent skips in the footage did not render the entire video inadmissible. Nicholas urges us to find that the video also should have been excluded because it unfairly prejudiced him, but nothing about the video would cause a reasonable jury to decide the case on an improper basis and the inferences the jury drew from it were reasonable. Nicholas’s remaining arguments also fail because his actions on February 14 provided sufficient evidence to support his convictions. Constantino claims it was error to count his gun possession on February 14 as a second conviction under 18 U.S.C. § 924(c) because he continually possessed the gun from February 8, the date of the illicit activities underlying his first conviction, through February 14. But we have held that two predicate drug offenses involving distinct conduct can support two convictions under § 924(c). The jury convicted Constantino of two drug trafficking offenses, and found that he carried a gun during each. So as harsh as a mandatory twenty-five year sentence for a second conviction may be, it does not violate double jeopardy, and the conviction stands.

We affirm the brothers’ convictions and Constantino’s sentence.

I.BACKGROUND

Brothers Constantino and Nicholas Cejas were indicted on charges related to drug activity that occurred on February 8, 2011 and February 14, 2011. Their illicit activities came to the attention of law enforcement officials in early 2011 during the Federal Bureau of Investigation’s (“FBI”) surveillance of the methamphetamine trafficking activities of Brian Denny and his neighbor Gregory Miller in Terre Haute, Indiana. FBI agents monitored and recorded the activities that occurred outside of Denny’s and Miller’s homes through the use of a pole camera mounted on a nearby utility pole, which allowed the agents to view and control the video feed from a remote location. Much like a convenience store surveillance camera, the pole camera captured a live feed, but the recording skipped every few seconds and did not produce a fluid, continuous video.

On February 8, 2011, FBI Special Agent Ed Wheele and other agents monitored the live video feed. The camera recorded Constantino, a security guard, and his son as they arrived at Denny’s residence in Constantino’s company car. The video showed the pair enter Denny’s residence and exit the home a short time later. Denny’s cooperation with the FBI later revealed that Constantino sold him methamphetamine while inside his home that day. Once the deal was done, undercover agents followed Constantino’s car to a nearby restaurant and saw him carrying a handgun and a small shield on his hip. In an effort not to compromise the surveillance operation, the special agents did not arrest Constantino that day.

The pole camera showed Constantino arrive at Denny’s residence once again on February 14, 2011. This time, his brother Nicholas was with him, driving Nicholas’s pick-up truck with Constantino in the passenger seat and Constantino’s son in the backseat. The pole camera recording showed the brothers leave the truck and Nicholas walk over to the toolbox attached to the bed of the truck and place his hand on the toolbox lid. The video records the toolbox lid open and then shut, with Nicholas standing beside it. But, as Nicholas points out, the feed does not show him take anything out of the box. The brothers then entered Denny’s home. Denny later testified that, once inside, either Nicholas or Constantino placed four ounces of methamphetamine in his microwave and received $8,000 from him. After leaving the home and coming back within the pole camera’s view, the brothers walked to the truck and both went to the truck’s toolbox before driving away. Agent Wheele witnessed this activity via the live feed and ordered the on-site surveillance team to follow Nicholas’s truck. When the law enforcement officers stopped them, Constantino showed the officers his security badge and admitted to possessing a firearm. The officers seized a loaded firearm from his waistband and found a second handgun and $8,000 cash in the toolbox.

Constantino and Nicholas were indicted for conspiring to supply Denny and other individuals in Indiana with over 500 grams of methamphetamine. In connection with their activities on February 14, 2011, they were charged with possession and distribution of 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Constantino was also hit with identical charges for his actions on February 8, 2011, as well as possession of a firearm by an alien illegally or unlawfully present within the United States, in violation of 18 U.S.C. § 922(g)(5). Constantino pled guilty on this last count, and the brothers went to trial on the remaining charges.

At trial, Denny testified against the brothers. He admitted purchasing methamphetamine from Constantino, known to him as “Tino,” on five occasions in 2011 and testified that Nicholas accompanied Constantino to Denny’s residence “at least once, possibly twice.” According to Denny, he did not know which brother actually provided the drugs on the occasion when they came to his house together because they placed the drugs in his microwave out of his sight. Agent Wheele testified regarding his observations while monitoring the pole camera and confirmed that the recording that the government wanted to admit into evidence was an accurate depiction of what he saw from his remote location. The one-hour video recording from February 8 was admitted without objection. Nicholas objected to the admission of the February 14 video for lack of foundation and completeness, but his objection was overruled and the thirty-five minute video was admitted and the relevant clips shown to the jury.

The jury found the brothers guilty of all five counts. Nicholas was sentenced to 180 months’ imprisonment, while Constantino received a sentence of 480 months’ imprisonment. Constantino was sentenced to 120 months’ imprisonment for the two distribution convictions, to run concurrently with his 120–month sentence for conspiracy and consecutively to his sixty-month sentence for possessing a gun during the drug deal on February 8. But the majority of his sentence came from the 300 months imposed pursuant to 18 U.S.C. § 924(c)(1)(C), which requires the imposition of a twenty-five year sentence, to run consecutively to any other sentence, for a defendant’s second conviction for possession of a firearm in furtherance of a drug trafficking crime. The brothers timely appealed their convictions, which we have consolidated for our review.

II. ANALYSIS

The brothers both argue that the February 14 video was inadmissible because it was not properly authenticated. Nicholas lodges a second attack against the video, claiming it was unfairly prejudicial and that, without it, there was insufficient evidence to convict him. Constantino takes issue with his sentence, arguing that this second conviction for possessing a firearm in furtherance of a drug trafficking offense violated the Fifth Amendment’s Double Jeopardy Clause, contravenes congressional intent, or the rule of lenity requires reversal.

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 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 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 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 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. 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 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 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.