United States District Court, S.D. Georgia, Savannah Division
Christopher L. Ray United States Magistrate Judge.
Robinson is charged with one count of distribution of a
controlled substance (cocaine base), in violation of 21
U.S.C. § 841. See doc. 1 (Indictment). In
discovery, the Government produced a video recording that
purportedly captured a confidential informant (CI) purchasing
drugs from Robinson on March 7, 2018. See doc. 22 at
1; see also doc. 38 at 1-2. Both parties agree that
the video was recorded by a body-worn camera provided to the
CI by law enforcement. See doc. 22 at 1; doc. 38 at
1. Robinson challenges the admissibility of the recording,
arguing that a discrepancy between the date of the alleged
purchase and the video's internal date/time stamp
precludes its authentication pursuant to Fed.R.Evid. 901. He
also questions whether he can be positively identified in the
video. Doc. 22 at 2-3. The Court held a hearing on the motion
on June 6, 2019. Docs. 47, 48.
preliminary matter, the Government disputes that
Robinson's arguments challenging the recording are proper
subjects of a suppression motion. See doc. 38 at
3-4. The Government correctly points out that suppression is
the proper remedy for evidence that was illegally collected.
Id. at 4 (citing Fed. R. Crim. P. 12, Advisory
Committee Note; United States v. Mescher, 1991 WL
224270 at * 2 (S.D. Ohio Oct. 28, 1991)). Robinson's
challenge, as discussed below, does not suggest any statutory
or constitutional defect in the method of collection.
Although Robinson's motion is not technically a motion to
suppress, courts have reconstrued similar motions as motions
in limine and proceeded to consider admissibility.
See United States v. Bereznak, 2018 WL 1993904 at *
4 (M.D. Pa. April 27, 2018) (citing, inter alia,
United States v. Wilk, 572 F.3d 1229, 1236 (11th
Cir. 2009)). At the hearing, defense counsel conceded that
the motion was properly a motion in limine and
consented to its recharacterization.
motion in limine, the Government need only make a
prima facie showing of reliability prior to the
evidence's admission at trial. See Fed. R. Evid.
901; see also United States v. Belfast, 611 F.3d
783, 819 (11th Cir. 2010). The recording's admissibility
depends upon “the competency of the operator [of the
recording device], the fidelity of the recording equipment,
the absence of material deletions, additions, or alterations
in the relevant portions of the recording, and the
identification of the relevant [individuals].”
United States v. Biggins, 551 F.2d 64, 66 (5th Cir.
1977); see also United States v. Sarro, 742 F.2d
1286, 1292 (11th Cir. 1984) (adopting Biggins test
for authentication of audio recording).
principal challenge to the admissibility of the video is the
undisputed fact that the internal date/time stamp on the
video reads “June 3, 2013.” Doc. 22 at 2. At the
hearing, the Government called Savannah Police Department
Detective Eric Smith, the agent in charge of the controlled
buy. Detective Smith testified that he was responsible for
setting up and starting the recording device. He had been
using similar equipment since 2015. He further testified that
he had used the particular recording device at issue in past
operations, and it had proven reliable. He further testified
that, at the time the video was recorded, he was unable to
set the device's time and date correctly. He had since
contacted the device's manufacturer and corrected the
issue. Finally, he testified that he reviewed the recording
and it was consistent with the other surveillance (visual and
via an open cell-phone connection) of the events.
Smith's unrebutted and fully credible testimony is
adequate to admit the recording. Even assuming that the
incorrect date/time stamp creates a doubt about the
video's accuracy, Detective Smith's testimony
resolves it. In similar circumstances, the Eleventh Circuit
has recognized the adequacy of such testimony. See United
States v. Capers, 708 F.3d 1286, 1305-06 (11th Cir.
2013) (recording properly admitted where agent
“testified that he supplied the CI with the audio-only
and audio/video equipment on [the date at issue] and that
[it] was operating correctly.”). Based on that
testimony, the Government has borne its prima facie
authentication burden. Any further dispute about the contents
of the recording are left for the factfinder. See United
States v. Caldwell, 776 F.2d 989. 1001-02 (11th Cir.
1985) (“Authentication or identification under [Fed. R.
Evid.] 901 merely involves the process of presenting
sufficient evidence to make out a prima facie case
that the proffered evidence is what it purports to be. Once
that prima facie showing has been made, the evidence
should be admitted, although it remains for the trier of fact
to appraise whether the proffered evidence is in fact what it
purports to be.”).
Robinson's motion in limine to exclude the video
recording is DENIED.