United States v. Terrance Craig ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0095p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 19-3278
v. │
│
│
TERRANCE CRAIG, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Youngstown.
No. 4:18-cr-00198-1—Donald C. Nugent, District Judge.
Argued: January 29, 2020
Decided and Filed: March 27, 2020
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 justice
system by publishing for the jury an unadmitted exhibit under the guise of impeachment.
No. 19-3278 United States v. Craig Page 2
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.
Because 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 observed 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 holster 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
No. 19-3278 United States v. Craig Page 3
firearm with an extended magazine. When Officer Ball asked about the extended magazine in
the video, Craig responded that he rarely saw extended-magazine guns, and that they are for
show and usually jam.
Officers later surveyed the abandoned SUV and discovered 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 possessing a firearm and ammunition after a felony
conviction under 18 U.S.C. § 922(g). At trial, the Government introduced evidence from its
gunshot residue expert indicating that Craig had either discharged a firearm or had been near a
firearm which was discharged, as well as DNA evidence that Craig’s DNA was on the firearm
located in the back of the SUV.
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
video 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 felon 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
No. 19-3278 United States v. Craig Page 4
put on the holster, removed the firearm, and returned fire over his head and out the side window
in an attempt to ward off the attackers.
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 objection, 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:
No. 19-3278 United States v. Craig Page 5
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 “was 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 Ohio Revised Code
section 2923.162(A)(3) and (C)(2).1 The court found that Craig had discharged a firearm over a
public road, creating a substantial risk of physical harm because he “admitted that in his
testimony, that he did that.” R. 64 at PageID 599.
Craig’s counsel then objected because the district court had not considered whether Craig
acted in self defense when he violated section 2923.162(A)(3). He argued that Craig discharged
a firearm over a public road because another vehicle was chasing and shooting at him and his
friends. The district court rejected this argument:
1
Subsections 2923.162(A)(3) and (C)(2) define as a felony “[d]ischarg[ing] a firearm upon or over a public
road or highway” when doing so “create[s] a substantial risk of physical harm to any person or cause[s] serious
physical harm to property.” Ohio Rev. Code Ann. § 2923.162(A)(3), (C)(2). The Government also sought this
enhancement on the basis that Craig committed felonious assault, id. § 2903.11(A)(2), discharged a weapon at or
into an occupied structure or a school safety zone, id. § 2923.161(A)(1)–(2), and operated a motor vehicle so as to
willfully elude or flee a police officer, id. § 2921.331(B). The district judge applied the four-level enhancement
because it found that Craig had discharged a firearm over a public road and created a substantial risk of physical
harm, so it did not consider the other offenses.
No. 19-3278 United States v. Craig Page 6
[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 about 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 also 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.” Fed. R. Evid. 901(a). The proponent
must provide sufficient evidence “so that a reasonable juror could find in favor of authenticity or
identification.” United States v. Jones, 107 F.3d 1147, 1150 n.1 (6th Cir. 1997) (quoting Jack B.
Weinstein et. al., Weinstein’s Evidence Manual ¶ 901(a) [01], at 901–19 (5th ed. 1996)); see also
United States v. Thomas, 701 F. App’x 414, 418 (6th Cir. 2017).
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
No. 19-3278 United States v. Craig Page 7
contends, because the video was never authenticated. Specifically, he argues that the
Government failed to introduce evidence that Craig was the masked individual in the video or
that this was the video about which the officers testified. We agree that the court erred in
allowing the video to be played to the jury without its admission into evidence.
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 unauthenticated.
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 Federal Rule of
Evidence 608(b) and was not introduced into evidence as an exhibit. Rule 608(b) provides:
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
Rule 608(b).” United States v. Zidell, 323 F.3d 412, 426 (6th Cir. 2003). In other words, a
questioner may ask about specific instances of conduct to attack a witness’s credibility, but only
if the questioner has a good faith basis that the instance actually occurred. The Government
accordingly contends that it needed only a “good faith basis” to believe that Craig was the
individual in the rap video to allow it to show the video to Craig and the jury.
The Government’s reliance on Rule 608(b) is unavailing. As an initial matter, as Craig
points out, Rule 608(b) by its terms prohibits the use of extrinsic evidence. Under that Rule, we
have allowed a questioner to ask about extrinsic documents during cross-examination and show
them to the witness, but not to publish the documents to the jury. See United States v. Delaine,
517 F. App’x 466, 470 (6th Cir. 2013) (“The checks that Defendant now claims should have
been excluded were never admitted into evidence. The jury did not see them, nor were they
No. 19-3278 United States v. Craig Page 8
available to the jury during deliberations.”). So, although the Government may have been
permitted to show Craig the video and question him about it, Rule 608(b) did not authorize
playing the video to the jury. See id.; see also Roger Park & Tom Lininger, The New Wigmore:
A Treatise on Evidence: Impeachment and Rehabilitation § 2.3 (1st ed. Supp. 2020)
(“Inadmissible evidence [can] provide the good-faith basis for cross-examination. . . . Of course,
the prosecution could not make that inadmissible evidence known to the jury under the guise of
providing a good-faith basis for impeachment.”).
Accordingly, and unsurprisingly, none of the Rule 608(b) cases upon which the
Government relies involve extrinsic evidence such as documents or videos. See United States v.
Gaines, 105 F. App’x 682, 695 (6th Cir. 2004) (noting that to prevail, the defendant “must show
that the prosecutor lacked a ‘good faith basis’ for asking the questions” (emphasis added)),
vacated on other grounds, 543 U.S. 1114 (2005); Zidell, 323 F.3d at 425 (“Defendant asserts that
he was deprived of a fair trial when the Government inquired during his cross-examination,
allegedly without any factual basis, whether he had attempted to secure a witness’s false
testimony on his behalf.” (emphasis added)).2
The Government’s reliance on Rule 608(b) is also flawed because this rule by its terms
does not apply to the impeachment at issue. It permits impeachment about “specific instances of
a witness’s conduct in order to attack or support the witness’s character for truthfulness.” Fed.
R. Evid. 608(b). But, the video at issue depicts a masked individual performing a rap and
holding a firearm, which has nothing to do with character for truthfulness. Cf. Zidell, 323 F.3d at
426 (finding questions about an attempt to suborn perjury to be proper cross-examination under
608(b) because they beared on the witness’s “character for truthfulness”).
Likely recognizing these difficulties, the Government at oral argument described its use
of the video as a hybrid of Rule 608(b) and Rule 613, which concerns impeachment by prior
2
Some courts have permitted the introduction of extrinsic evidence to prove specific instances of conduct
that demonstrate a character for truthfulness if the witness admits to the conduct. See United States v. Zandi,
769 F.2d 229, 236 (4th Cir. 1985) (“[C]ourts generally hold that when a witness admits to having performed certain
acts . . . the prohibition against using extrinsic evidence is not applicable.”); Carter v. Hewitt, 617 F.2d 961, 970 (3d
Cir. 1980) (same). This approach does not seem consistent with the language of Rule 608(b) but, in any event, we
need not consider its merit. Craig of course denied he was the individual in the video.
No. 19-3278 United States v. Craig Page 9
inconsistent statement. Rule 613 also does not help the Government. Although extrinsic
evidence may be used for impeachment by prior inconsistent statement, such extrinsic evidence
must still be authenticated. See United States v. Harris, 881 F.3d 945, 949 (6th Cir. 2018)
(finding a prior inconsistent statement admissible because it “met the requirements of Rule
901(a)”); see also United States v. Isiwele, 635 F.3d 196, 199–201 (5th Cir. 2011) (same). We
find no merit in the Government’s attempt to get around this requirement by substituting in the
“good faith” standard from Rule 608(b), which by its own terms governs questioning, not
evidence.
Instead, what the Government describes as a hybrid of Rule 608(b) and Rule 613 appears
to be common-law impeachment by specific contradiction, which “permits courts to admit
extrinsic evidence that specific testimony is false, because contradicted by other evidence.”
United States v. Kincaid-Chauncey, 556 F.3d 923, 932 (9th Cir. 2009) (quoting United States v.
Castillo, 181 F.3d 1129, 1132 (9th Cir. 1999)), abrogated on other grounds by Skilling v. United
States, 561 U.S. 358 (2010). Although impeachment by specific contradiction is not explicitly
contemplated in the Federal Rules of Evidence, federal courts have permitted this type of
impeachment. See, e.g., United States v. Gilmore, 553 F.3d 266, 271–72 (3d Cir. 2009); United
States v. Perez-Perez, 72 F.3d 224, 227 (1st Cir. 1995); 1 Kenneth S. Broun et al., McCormick
on Evidence § 45 (8th ed. Supp. 2020); see also United States v. Markarian, 967 F.2d 1098,
1101–03 (6th Cir. 1992) (allowing the Government to recall an earlier witness to contradict the
defendant’s testimony that he never dealt drugs). Extrinsic evidence is permitted for
impeachment by contradiction only as to non-collateral matters. See Markarian, 967 F.2d at
1102 (“The rule prohibits contradiction of collateral matters by extrinsic evidence but permits
cross-examination on collateral points which are relevant and otherwise proper.”); see also
Kincaid-Chauncey, 556 F.3d at 932 (“When impeaching by contradiction, the fact to be
contradicted must be material.”).
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
evidence 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 United
No. 19-3278 United States v. Craig Page 10
States v. Scott, 693 F.3d 715, 721–22 (6th Cir. 2012) (“We have not recognized the doctrine of
impeachment by contradiction, and we need not do so today.” (citation omitted)); United States
v. Todd, 431 F. App’x 412, 416 (6th Cir. 2011) (discussing use of impeachment by contradiction
in other circuits and noting that this circuit has not adopted it). Second, at least one circuit has
limited impeachment by contradiction to statements made on direct examination, not answers
brought out on cross. Kincaid-Chauncey, 556 F.3d at 932 (citing United States v. Green,
648 F.2d 587, 596 n.12 (9th Cir. 1981)). But see Markarian, 967 F.2d at 1103 (allowing
extrinsic evidence to impeach statements made on direct examination and “broadened” on cross).
Finally, and most importantly, such extrinsic evidence is still subject to ordinary rules of
admissibility, which would include authentication. See Markarian, 967 F.2d at 1101–03
(permitting the Government to recall an earlier witness to contradict the defendant’s testimony
that he never dealt drugs when paired with limiting instruction about hearsay). The district court
therefore abused its discretion in allowing the Government to play the video for the jury.
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
evidence 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
presume 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.
No. 19-3278 United States v. Craig Page 11
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 about 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,
3
At oral argument, counsel suggested that the ability to authenticate the document should be considered as
part of the harmless-error analysis, but did not direct the court to a single case in which the harmlessness of an
evidentiary ruling was judged by whether the proponent could have obtained admission of the evidence had it done
things differently at trial.
No. 19-3278 United States v. Craig Page 12
440 F.3d 832, 847 (6th Cir. 2006) (“The harmless error standard calls for reversal when the
appellate court lacks a fair assurance that the outcome of a trial was not affected by evidentiary
error.” (quoting McCombs v. Meijer, Inc., 395 F.3d 346, 358 (6th Cir. 2005))).
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 contained 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 could 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
platforms, 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
No. 19-3278 United States v. Craig Page 13
modified to do so. This court has nevertheless permitted the introduction of certain social media
content, provided the Government lay a sufficient evidentiary foundation to establish that they
are what the proponent claims them to be. Thomas, 701 F. App’x at 419–20. But, the
Government here failed to meet even this requirement. No one at trial testified that Craig was
the individual depicted, and no one testified as to where and how they found the video. To allow
the Government to play to the jury a video of an individual who may look somewhat like the
defendant with no evidentiary basis for where the video came from or why the jury should
believe it shows the defendant is cause for significant concern. Although the Government
furnished other evidence at trial in support of its case, the sensational and visceral aspects of the
video—an unadmitted exhibit—appears to have infected the jury’s deliberations.
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.