Case: 19-3278 Document: 27 Filed: 09/25/2019 Page: 1

No. 19-3278

United States Court of Appeals

for the Sixth Circuit
____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TERRANCE CRAIG,

Defendant-Appellant.

APPEAL OF JUDGMENT OF THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO
____________

TERRANCE CRAIG’S REPLY BRIEF

____________

STEPHEN C. NEWMAN
Federal Public Defender
Ohio Bar: 0051928

CHRISTIAN J. GROSTIC
Ohio Bar: 0084734
1660 W. 2nd Street, Suite 750
Cleveland, OH 44113
Telephone: 216.522.4856
Facsimile: 216.522.4321
Email: christian_grostic@fd.org

Counsel for Defendant-Appellant

Terrance Craig
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TABLE OF CONTENTS

Page

TABLE OF CONTENTS ..................................................................................................i

TABLE OF AUTHORITIES ............................................................................................ii

I. INTRODUCTION ...................................................................................................1

II. ARGUMENT ..........................................................................................................3

A. The evidentiary rules do not permit a party to play a video for the jury
without authenticating it, and the Government did not authenticate the
video through witnesses that were not even shown it. ...................................3
B. The district court at sentencing erroneously rejected Craig’s self-defense
claim as a matter of law and did not resolve the disputed factual issues
that would have been necessary to decide if it considered his defense on
the merits. ...................................................................................................10

III. CONCLUSION .....................................................................................................14

CERTIFICATE OF SERVICE .........................................................................................15

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TABLE OF AUTHORITIES

Cases

Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356 (Fed. Cir. 2012).................6

Hartley v. St. Paul Fire & Marine Ins. Co., 118 F. App’x 914 (6th Cir. 2004) ...........5

Kotteakos v. United States, 328 U.S. 750 (1946) ....................................................8, 9

United States v. Bostic, 371 F.3d 865 (6th Cir. 2004)...............................................10

United States v. Delaine, 517 F. App’x 466 (6th Cir. 2013) .......................................4

United States v. Hall, 989 F.2d 711 (4th Cir. 1993) ...................................................5

United States v. Haywood, 280 F.3d 715 (6th Cir. 2002) ...........................................8

United States v. Hall, 989 F.2d 711 (4th Cir. 1993) ...................................................5

United States v. Roberts, 919 F.3d 980 (6th Cir. 2019) ............................................13

Rules

FED. R. CRIM. P. 32 ..................................................................................................13

FED. R. EVID. 103 .......................................................................................................5

FED. R. EVID. 608 .......................................................................................................4

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I. INTRODUCTION

The Government’s arguments on appeal conflict with the law, the record, or

both.

The Government argues that it used a video at Craig’s trial only to attempt to

impeach him on cross-examination, and that the evidentiary rules on cross-

examination allowed it. That is wrong on the law and the facts. The rule the Gov-

ernment relies on expressly bars extrinsic evidence, like a video, when inquiring into

specific instances of conduct. And the Government used the video for more than

merely to attempt to impeach Craig.

The Government argues that it could play the video for the jury without au-

thenticating it because it did not ask the court to admit the video as an exhibit. That

also is not the law. Evidence must be authenticated to be admissible, and the eviden-

tiary rules don’t allow a party to show inadmissible evidence to the jury simply be-

cause the party doesn’t later seek to admit the evidence as an exhibit.

The Government claims that, even though it didn’t have to, it did authenticate

the video. That is not accurate. The Government claims that it authenticated the

video through witnesses that weren’t even shown it at trial, at a time when the de-

fense hadn’t even seen it. The video was relevant and admissible only if Craig was

the man in the video, and the only witness shown it—Craig—testified that it was not

him. And the video does not show what the Government claims it does—in particu-

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lar, the jacket worn by the man in the video is different than the jacket Craig wore

when he was arrested. If the Government had attempted to authenticate the video,

and the defense had been given a copy, the defense could have challenged any iden-

tifications that the witnesses tried to make and excluded it from evidence. But the

Government didn’t even attempt to authenticate it then, and cannot ask this Court to

do it now.

The error admitting the video was not harmless. Applying the proper stand-

ard, the Court cannot say with fair assurance that the error had no influence or only

very slight effect on the jury’s verdict. The jury had to decide whether to believe

Craig’s testimony that, after someone shoot at him and his vehicle, the driver handed

him a gun and holster, he put on the holster, and he shot back. Although the Gov-

ernment asserts that his testimony was incredible, the Government’s view of the evi-

dence is not at issue, and other evidence corroborated Craig’s account. But after the

Government played the video purportedly showing Craig possessing a firearm at an-

other time, the jury no longer had to decide whether to believe Craig’s testimony that

he had a valid justification defense—it could simply conclude that Craig had previous-

ly possessed the firearm, with no justification. Thus, the error was not harmless, and

the Court should reverse the judgment of conviction and remand for a new trial.

Regarding Craig’s sentence, he objected contemporaneously and thereby pre-

served for appeal whether the district court erred by rejecting his defense as a matter

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of law, and was not required to raise the issue again at the end of sentencing. The

Government argued below that self-defense does not apply to the Ohio offense un-

derlying Craig’s sentencing enhancement, and although the Government has aban-

doned that argument on appeal, the district court adopted it. The Government now

argues that the district court rejected Craig’s defense on the merits, but the transcript

shows that the court did not resolve the disputed factual issues key to his defense.

The court would have needed to resolve those issues if it were to decide Craig’s de-

fense on the merits, but it did not need to because it had already erroneously reject-

ed his defense as a matter of law. Thus, even if a new trial were not necessary, the

Court should vacate Craig’s sentence and remand for resentencing.

II. ARGUMENT

A. The evidentiary rules do not permit a party to play a video for the jury without
authenticating it, and the Government did not authenticate the video through
witnesses that were not even shown it.

The Government argues that it could play an unauthenticated video of a

masked man holding a firearm under the cross-examination rules and because it

didn’t seek to admit the video as an exhibit, and that even if that was improper, it au-

thenticated the video, and that even if the video wasn’t admissible, it was harmless

error. Its arguments conflict with the law and the record.

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The Government claims that it was allowed to play the video for the jury as

part of its cross-examination, under Rule 608(b), but Rule 608(b) expressly bars this

sort of evidence. The Government asserts that Rule 608(b) permits “an inquiry into

a witness’s character for truthfulness through specific instances of a witness’s con-

duct.” Gov’t Br. at 18. True enough. But Rule 608(b) also states that “extrinsic evi-

dence is not admissible to prove specific instances of a witness’s conduct.” FED. R.

EVID. 608. Thus, although Rule 608(b) may have allowed the Government to ask

Craig whether he had ever held a firearm while rapping in a video, it explicitly

barred the Government from showing the video. Cf. United States v. Delaine, 517 F.

App’x 466, 470-71 (6th Cir. 2013) (permitting Government to inquire about alleged-

ly forged checks where checks “were never admitted into evidence” and “[t]he jury

did not see them”).

And the Government did not limit its use of the video to questioning Craig

about his truthfulness, as it now argues. The Government claims that, after it played

the video, “when [Craig] denied that he was the person depicted in it, the govern-

ment did not use the video further.” Gov’t Br. at 17. But in its closing argument, the

Government argued to the jury that the video was substantive evidence that Craig

previously possessed a firearm. It asserted that “you know that he had that gun be-

fore” because “[y]ou saw the Facebook video and you saw him with the gun.” R. 47,

Trial Tr. at 302, PageID #488. The Government claims that, when the jury asked to

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see the video again, the district court told them that the video was only “used for

cross-examination purposes.” Gov’t Br. at 11. That, too, is not accurate. The court

did not say anything to the jury about cross-examination or that the jury could con-

sider the video only for a limited purpose. Instead, the court told them that “what

you have to do is just call into your recollection of that.” R. 47, Trial Tr. at 314,

PageID #500.

The Government claims that it did not have to authenticate the video because

it was not admitted as an exhibit, asserting that authentication is “an issue that is only

relevant for admitted evidence.” Gov’t Br. at 19. That is not the law.

“[A]uthentication is a necessary precondition to admissibility,” Hartley v. St. Paul

Fire & Marine Ins. Co., 118 F. App’x 914, 921 (6th Cir. 2004), and “the court must

conduct a jury trial so that inadmissible evidence is not suggested to the jury by any

means,” FED. R. EVID. 103(d). See United States v. Hall, 989 F.2d 711, 716 (4th Cir.

1993) (prosecutorial misconduct to read inadmissible statement “under the guide of

‘artful cross-examination’”). Under the Government’s view, a party could circumvent

the evidentiary rules by playing any audio or video recording for the jury, so long as

they didn’t ask the court to formally admit the recording as an exhibit.

Absent an instruction not to consider it, a recording played for the jury is evi-

dence, regardless of whether the recording is admitted as an exhibit. The district

court itself recognized this. When the jury asked to see the video again, the district

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court did not tell them that it wasn’t evidence and the jury couldn’t consider it. It told

them that “what you have to do is just call into your recollection of that.” R. 47, Trial

Tr. at 500, PageID #314.

The Government claims that, even though the law did not require it to au-

thenticate the video, its evidence “would have satisfied the relevant authentication

standard.” Gov’t Br. at 19. The Government relies on two witnesses who weren’t

even shown the video at trial, much less attempted to authenticate the video. See

Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 1365 (Fed. Cir. 2012)

(holding that Board properly excluded reports that were not shown to and not au-

thenticated by witness). And the Government did not even give the video to the de-

fense until after the witnesses testified. See R. 47, Trial Tr. at 218, PageID #404.

The video was relevant and admissible only if the masked man in it was Craig,

but the only witness shown the video was Craig himself, and he testified that it was

not him. Id. at 238, PageID #424. Although the Government claims that it authenti-

cated the video because, for example, the masked man was “wearing the same jacket

that Craig wore at the time of his arrest,” Gov’t Br. at 8, the jackets are not the same.

For example, the masked man’s jacket had a zipper down the middle, and Craig’s

jacket had two zippers along the sides. Compare Gov’t Ex. 72, Rap Video (submitted

via DVD) (showing middle zipper) with R. 69-1, Gov’t Ex. 29, Craig Photograph,

PageID #718 (showing two side zippers). The masked man’s jacket had narrow hori-

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zontal stitching along the upper torso with wider stitching below, and Craig’s jacket

had wide horizontal stitching all along the torso. Compare, e.g., Gov’t Ex. 71, Rap

Video at 0:08, 0:39 (narrow stitching) with Gov’t Ex. 29, Craig Photograph, PageID

#718 (wide stitching). The masked man’s jacket had a hood; Craig’s did not. Com-

pare Gov’t Ex. 71, Rap Video (hood) with Gov’t Ex. 29, Craig Photograph, PageID

#718 (no hood).

If the Government had tried to authenticate the video through its witnesses,

and the defense had been able to see the video, the defense could have challenged

the identification and excluded the evidence. But the Government did not even

show the video to its witnesses, much less try to authenticate it through them. It can-

not, after the fact, try to use their testimony to establish the necessary positive identi-

fication, particularly in light of the discrepancies they would have had to explain had

the government tried to use those witnesses to authenticate the video as depicting

Craig.

The error was not harmless. First, the Government asks the Court to apply

the wrong standard. The question is not whether “it is more probable than not that

the error materially affected the verdict,” and it is not Craig’s burden to “demon-

strate” harmless error, as the Government claims. See Gov’t Br. at 21. Instead, as

the Supreme Court has instructed, the Court must “presume that the district court’s

error was reversible unless [the Court] can say, ‘with fair assurance, after pondering

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all that happened without stripping the erroneous action from the whole, that the

judgment was not substantially swayed by the error[.]’” United States v. Haywood,

280 F.3d 715, 724 (6th Cir. 2002) (quoting Kotteakos v. United States, 328 U.S. 750,

765 (1946)). Only “[i]f, when all is said and done, the conviction is sure that the er-

ror did not influence the jury, or had but very slight effect, the verdict and the judg-

ment should stand.” Kotteakos, 328 U.S. at 764. “That conviction would, or might

probably, have resulted in a properly conducted trial is not the criterion of [the

harmless-error statute].” Id. at 776. “[I]t is not the appellate court’s function . . . to

speculate upon probable reconviction and decide according to how that speculation

comes out.” Id. at 763.

Applying the proper standard, the error was not harmless because the Gov-

ernment has not demonstrated that the error did not influence the jury or had but

very slight effect. The Government claims that there was “overwhelming evidence

that Craig committed the offense,” Gov’t Br. at 20, but there is no dispute that Craig

possessed a weapon. The only dispute is whether he had a valid justification defense,

and on this point, the Government merely asserts that his testimony “was incredible

and strained the bounds of logic.” Id. Craig testified that, after someone shot at the

SUV he was in, the driver gave him a weapon and a holster, he put the holster on,

and used the gun to shoot back. R. 47, Trial Tr. at 223-25, 227-28, 233-36, PageID

#409-11, 413-14, 419-22. The Government tried to cast this testimony as incredible,

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because when the police arrested Craig, he had a coat on over the holster. See id. at

156-57 (Gov’t Closing), PageID #486-87. But the Government’s view of his testimo-

ny is not the question. “[O]ne must judge others’ reactions not by his own, but with

allowance for how others might react and not be regarded generally as acting without

reason.” Kotteakos, 328 U.S. at 763. It is not “incredible” that Craig grabbed his coat

and put it on before he ran from the car, after he had put on the holster earlier. And

other evidence—bullet holes in the SUV, and video of another vehicle chasing

Craig’s vehicle—corroborated the other parts of his account. 1

It was for the jury to decide whether Craig’s testimony was credible and estab-

lished his justification defense. But by playing for the jury an unauthenticated video

that the Government claimed showed Craig possessing the firearm at another time,

the jury no longer had to decide that question—it could simply conclude that Craig

had previously possessed the firearm, with no justification. Thus, it is impossible to

say that the error admitting the video “did not influence the jury, or had but very

slight effect,” id. at 764, and the error therefore was not harmless.

1
In its factual recitation, the Government also asserts that Craig “could not explain
why all of the shell casings were found inside of the vehicle,” apparently attempting
to dispute Craig’s testimony that he fired with his arm out of the window. Gov’t Br.
at 10. But the Government cites only its own closing argument for this assertion. Id.
There was no evidence that “all” shell casings were found in the vehicle, or that shell
casings could not fall back into the vehicle if someone shot the gun while their arm
was out the window. Again, the Government’s view of what is or isn’t credible is not
at issue.
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B. The district court at sentencing erroneously rejected Craig’s self-defense claim

as a matter of law and did not resolve the disputed factual issues that would
have been necessary to decide if it considered his defense on the merits.

The Government argues that Craig did not preserve his argument that self-

defense applies to the Ohio crime of discharging a firearm over a public road, and

that the district court nevertheless rejected his self-defense claim on the facts. Its ar-

guments conflict with the record.

Craig preserved his argument that self-defense applies to the Ohio crime at is-

sue. The Government claims that Craig did not raise the issue when the district court

asked at the end of sentencing whether the parties had any other objections. See

Gov’t Br. at 23. But a party need only make objections then that “have not previous-

ly been raised.” United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004). Craig

made all necessary objections and arguments earlier. During the sentencing hearing,

Craig argued that he did not commit the Ohio crime of discharging a firearm over a

public road. R. 64, Sentencing Tr. at 10-12, PageID #591-93. In response, the Gov-

ernment argued that it was “a strict liability offense,” and that “[i]f he fired a weapon

and the bullets traveled over a highway, you know, that’s a felony offense.” Id. at 16,

PageID #597. The district court agreed, concluding that Craig “admitted that in his

testimony, that he did that. And so I think the four-point enhancement is appropri-

ate.” Id. at 18, PageID #599. The court then asked defense counsel, “is there any-

thing in addition that you wish to say on his behalf?” Id. Defense counsel responded

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that “even though it’s a strict liability offense, a discharging a firearm I think would

still be subject to the self-defense claim,” id., and explained why and why the defense

applied here, id. at 18-19, PageID #599-600. By expressly disputing the district

court’s conclusion and arguing that self-defense was a valid defense, defense counsel

preserved the issue for appeal.

As Craig explained in his opening brief, self-defense is a valid defense under

Ohio law. See Craig Br. at 13-14. Despite erroneously claiming that Craig did not

preserve the issue, the Government does not argue on appeal that Craig is wrong on

the law. Instead, the Government now argues that the district court did not accept its

argument that self-defense does not apply, and rejected the defense on the facts.

That, too, conflicts with the record.

The record establishes that the district court concluded that self-defense does

not apply to discharging a firearm over a public road. After Craig argued that he act-

ed in self-defense, the Government argued that self-defense does not apply because

it was a strict-liability offense. See R. 64, Sentencing Tr. at 16, PageID #597 (“The

firing over a highway, over a city street, is a strict liability offense in the state of Ohio,

so there is no intent to be proved of that. If he fired a weapon and the bullets trav-

eled over a highway, you know, that’s a felony offense.”). The court agreed:

THE COURT: Yeah, I’m struck by the idea under

2923.162(a)(3) and (c)(2) that if any person discharges a firearm over a
public road or highway, that it causes -- it does cause a substantial risk
of physical harm to any person or property, I suppose, which is a felony

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of the third degree. I don’t think I have to even go to the felonious as-
sault statute or anything else because that -- Mr. Craig admitted that in
his testimony, that he did that.

Id. at 17-18, PageID #598-99. The court concluded: “And so I think the four-point

enhancement is appropriate.” Id. at 18, PageID #599.

That was the district court’s ruling, and that was error. Even the Government

has abandoned any argument that self-defense is not a valid defense under Ohio law

to discharging a firearm over a public road.

Despite what the transcript says, the Government argues that the district court

did not rely on strict liability to conclude that the enhancement applied, and instead

rejected Craig’s self-defense argument on the merits. See Gov’t Br. at 27. That is not

accurate. The Governments point to what happened after the district court made its

ruling, when it asked defense counsel, “is there anything in addition that you wish to

say on his behalf?” R. 64, Sentencing Tr. at 18, PageID #599. The Government as-

serts that the district court found that Craig had not established that someone else

instigated the shooting and that his testimony was not credible, see Gov’t Br. at 27,

but that is not what the transcript shows.

Instead, the transcript shows that the district court did not decide the factual

disputes key to Craig’s defense, which it would have needed to decide to resolve the

issue on the merits. For example, the district court stated that “[i]t was not resolved

one way or the other who commenced the shooting.” R. 64, Sentencing Tr. at 19,

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PageID #600. But resolving a disputed issue is the district court’s job at sentencing.

See FED. R. CRIM. P. 32(i)(3)(B) (“At sentencing, the court . . . must—for any disput-

ed portion of the presentence report or other controverted matter—rule on the dis-

pute or determine that a ruling is unnecessary either because the matter will not af-

fect sentencing, or because the court will not consider the matter at sentencing[.]”);

United States v. Roberts, 919 F.3d 980, 988 (6th Cir. 2019) (“Our cases demand lit-

eral compliance with Rule 32[.]” (internal quotation marks omitted)). It is not sur-

prising that the district court did not do so here, but only because it had already er-

roneously rejected Craig’s defense as a matter of law, contrary to what the govern-

ment argues on appeal.

Similarly, rather than resolve whether Craig’s testimony credibly supported his

defense, the district court said, “I don’t want to get into too much detail about judg-

ing credibility.” R. 64, Sentencing Tr. at 20, PageID #601. Again, at sentencing, judg-

ing credibility is exactly what the district court must do if a disputed issue turns on

testimony. See FED. R. CRIM. P. 32(i)(3)(B). The court opined that the jury’s guilty

verdict showed that it didn’t believe Craig’s account regarding his justification de-

fense, and that “handing the holster over and things like that” weren’t credible. R.

64, Sentencing Tr. at 20, PageID #601. But self-defense under Ohio law is broader

than justification under federal law, see id. at 11, PageID #592; R. 24, Proposed Jury

Instructions at 2-3, PageID #49-50, and the items the court addressed mattered to

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justification but not to self-defense. The district court did not resolve the disputed

credibility issues regarding Craig’s self-defense claim—again, unsurprisingly, because

it had already erroneously rejected his defense as a matter of law.

III. CONCLUSION

The district court erred by allowing the Government to play for the jury an

unauthenticated video of a masked man rapping and holding a firearm, and the

Court should therefore reverse Craig’s conviction and remand for a new trial. Even if

a new trial were not necessary, because the district court erred by finding that Craig

committed a felony under Ohio law without deciding his self-defense claim on the

merits, the Court should vacate his sentence and remand for resentencing.

Respectfully submitted,

STEPHEN C. NEWMAN
Federal Public Defender
Ohio Bar: 0051928

/s/ Christian J. Grostic

CHRISTIAN J. GROSTIC
Ohio Bar: 0084734
1660 W. 2nd Street, Suite 750
Cleveland, OH 44113
Telephone: 216.522.4856
Facsimile: 216.522.4321
Email: christian_grostic@fd.org

Counsel for Defendant-Appellant

Terrance Craig

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CERTIFICATE OF SERVICE

I certify that on this 25th day of September, 2019, I filed Terrance Craig’s

Reply Brief electronically with the Clerk of the United States Court of Appeals for

the Sixth Circuit. The Court’s ECF system will automatically generate and send by

email a Notice of Docket Activity to all registered attorneys currently participating in

this case, constituting service on those attorneys.

/s/ Christian J. Grostic

Christian J. Grostic

Counsel for Defendant-Appellant

Terrance Craig

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