trial and one at sentencing the st on the trial issue the court admitted in an authenticated video of a masked man rapping and holding a gun the gun makes several arguments about why that was an error too i believe i can address quickly together the government argues that they can play the video without authenticating it because they didn't admit it as an exhibit and also because it was only used in impeachment both of those are wrong under the law and under the facts under the law evidence rule one o three d says the court has to conduct a trial in order to avoid inadmissible evidence even has been suggested to the authentication is a prerequisite for any evidence including impeachment evidence on the there is some impeachment evidence that can be offered without in the sense that you could question a  witness to impeach yes yes the matters that have not been brought in yes are yes so for example take the government could have asked mr craig were you ever in a video where you held a gun and if he said no they were stuck with that answer then circumstances yes that's that's right but that but that cross examination doesn't then allow the exhibit to be admitted or the evidence to be played for the jury what for instance if you have it if you had a document yes you could put it on here would have been to permitted the examination presence of the jury and maybe then subsequently in front of the jury if yes there were no problems yes exactly and i would i said also on the facts right the government didn't limit its use of this video to impeachment it said in closing you saw the video you know he was holding the gun before them at a previous time because you saw the video that's not saying he's not credible because he saw the video you need to rely on your memory on that it didn't say you can't consider it it hasn't been admitted it didn't say you can only consider it for impeachment purposes it said you have to rely on what you remember you can't see it again was that the court t hat was because of no and again even if it hasn't been admitted if the court says you're allowed to rely on that just rely on your memory what it's saying is you can consider that  one said that's mr craig and this is how i know it's mr craig the government comes back around and says well the earlier testimony when the video wasn't shown and when the defense didn't have it yet somehow authenticates it later on but a few points on that st of all authentication isn't an ex parte proceeding where one side gets to bring out what they want about the document the other side can't even see  it to test the credibility or the other accuracy of that testimony and this case is a good example there's three things the government points to that they say authenticated this video one is this jacket that he's wearing where they listed testimony over and over and over again four times including on redirect to emphasize this was the same jacket that's how we know it's him it's not the same jacket and there's no way to know that at the time when they're examining the police witnesses because the video not there but you can see you submitted the video exhibit seventy two you can compare to the jacket he was arrested in twenty nine there's a zipper down the middle in the video there's two zippers on the side there's a couple other flaws but the zippers themselves it's just not the same jacket and so we have to step back and wonder was that the basis for the police saying that we just don't know they never said why they say this is a video of craig if it is it should have stayed out there's no evidence then that it's correct the government points to two other things one that there were lyrics in the raps on the lyrics i think the phrases catch some bodies i did a quick google search for catch some bodies that phrase in the lyrics there's for that pop up in the in the in the  page so this could be someone quoting those lyrics from another song it could be somebody used in those lyrics themselves it doesn't establish that it's craig certainly or even the same video that they're talking about and then they point to a conversation that one of the officers as he had with craig when he was when he was taken to the station to arrest him but the very particular words of that conversation are very important if this is going to be an identification that it's craig and it's paid ready to fifty four that could be a video craig's also seen that isn't him it could be a video he posted on social media that was a cousin or a friend and in particular a friend it could be the driver of this car who he testified later gave him the gun  but i'm stuck here speculating but the problem is we're all speculating because nobody was shown the video and said yes that's him and that's the video i'm talking about and this is how i know it's him and that's why it was an authenticated now this this air was not harmless and i st want to address the legal standard for that the government says you have to find that it's more likely than not the jury would have reached a different verdict that's not the test the supreme court  versus united states explains the tests i know this court on bonking united states versus christian last year applied that code test and that test as whether there's a substantial influence which justice scalia explained is is not as high a standard is more likely than not but more importantly says the court's job is not to speculate upon probable reconviction and decide according to how that speculation comes out the question is whether it had a step substantial influence on this or in this case not whether one you know if we imagine there was a case without this evidence would have come out the same way and we know it had a substantial impact in this case you know in a couple ways when we know the jury focused on the video it was the one piece of evidence they asked a receipt to and this is thinking about how the jury is going to consider this whole case right the question came down to do we believe mr craig's testimony mr craig says i was in a car we were minding our own business going to the gas station another car did a u turn and started shooting at us the driver handed me a gun in a holster said here i threw on the holster i fired back at the car that's his testimony now the jury has to decide should we believe that there's some corroboration for that there bullet holes in the back of the s u v that he was in there is a security video from a home where you see that s u v s speed by and another vehicle speed by after there's some support for this the jury could believe this but if the jury sees a video that they're told is kreg even though that's a masked man sometime earlier holding a gun well now they don't have to consider whether he was justified that because they can just conclude well i guess he possessed are going to another time and one of the elements is you can only possess it for as long as necessary and the government says that the jury couldn't believe that video it's increase his testimony i'm sorry it's too incredible but that was tells us about that too one must judge others reactions not by his own but with allowance for how others might react but what about the fact that he said to the prosecutor may have said something untoward but right there is no other evidence disputing it's testimony well the prosecutor in closing tied it to the police officers testimony said you saw that video and  jacket they said he was holding the say and then in closing the government came yes mr craig said that's not me they moved down but in closing the the government said you know we had that gun before because you saw the facebook video and you saw him with the gu be authenticated to come and it was harmful and the court should order a new trial on those grounds on sentencing which of course the government doesn't need to address if they are the court doesn't need to address if it does order a new trial  there is those three were items in dispute the st is whether the error is preserved it was preserved there was no new objection at the close of all of it of the close of the sentencing hearing in response to the boston question but it's because the objection had already been raised the defense said we object to this and handsome the government argued self defense doesn't apply the court accepted that argument the very next thing that happened is the court said anything more from the defense attorney and he  said i understand the court's ruling but self defense does apply and they had a back and forth about it there was there was nothing more that needs to be said later at the end of sentencing to really raise that now raised objection it was raised before the court ruled it was raised after the court ruled and bostic doesn't require just reciting the same things over and over again there's no dispute now that self defense is a defense under ohio law to the felony of firing over a public road  cited the state versus patton state versus henley cases out of ohio the government hasn't disputed that and their briefs and the only dispute it seems that's remaining is the government says no the court didn't actually rely on that as the ground going over a highway is a strict liability offense so there's no intent to be proved on that and the very next page the court made its ruling that said i'm struck by the idea that if any person discharges a firearm over a public road or highway it's a felony of the rd degree the merits but criminal rule thirty two requires the court to resolve any factual disputes explicitly this court in united states versus roberts said we demand literal compliance with that rule and that's not what the court did instead it said things like well it wasn't resolved one way or the other who started the shooting that's it page eight thousand six hundred well that's something the court needs to resolve if it's going to rely on the facts and resolve it on the merits it's parts of his testimony weren't credible like handing over the whole the whole story but the quick here would have to rock a line right and say i find him credible when he said he was shooting over a public road but not credible about the holster handing over which is only relevant to justification not self defense but also not credible when he says the other side shoppers the court didn't make those findings and i'm not faulting the court for doing that it didn't have to it would already resolve the issue on the legal issue on the self defense issue so for that reason if the court does reach the sentencing issue we've asked the court to find that the court erred in resolving it on the legal grounds and remain for a sentence thank regarding the judge's response in trial when the jury asked for the video and i think you asked if he didn't he say it wasn't in evidence and i believe the answer was no he just said you have the recall of your recollection of the actual quote found on page d five hundred line seventeen is the rap video is not had made it into evidence so you have to just call in to your recollection just specifically said it was not in evidence and indeed during the jury during the course charged to the jury on three separate occasions he specifically addressed what is evidence what's not evidence what can be considered what can't be considered at page four hundred and forty one he defines the evidence and finishes by saying with the evidence in this case includes only what the witness said while they were testifying here under oath the exhibits that i allowed into evidence in the stipulations that the lawyers and parties agreed to nothing else is evidence i learned for forty offered and properly received into evidence it was clear that the court made it clear that the jury had to limit their deliberation to the evidence in this case the facebook video was was not offered were admitted into claims to be and then no one before says that the appearance the contents substance internal patterns or other distinction distinctive characteristics of the item taken together with all the circumstances can be used to authenticate an item in this case we have two officers who knew the defendant were familiar with the defendant testified that they saw a video to picking the defendant wearing the same or similar coat that he was wearing when he was arrested rapping and waving the gun with an extended magazine and one officer actually specifically was on the video saying waving a gun with extended magazine and saying he was on the run which corrupt was corroborated by the fact that craig actually a warrant out for me at the time and he's also saying every same line about did not turn himself in until he catch some bodies additionally rowlett the person was masked in the video if you look very closely at the video you can actually see by the right eye of the part of the individual in the video  marking it's hard to see the video is not very good quality but in the picture of craig which was the one submitted by the fence in this case you'll see a cross tattoo right plays right in the video if you look very carefully you can see a mark next to the right eye additionally the jury heard the defense testify and they heard him on the video so they would have to meet at the judge the voice as well and his statement was telling when the police officer asked him about the rabid e o he didn't say what video you're talking about he said yeah those things are was used it wasn't offered in evidence it wasn't asked to be admitted but were doing analysis a harmless error i think it's important to show that all the evidence was in the record to properly authenticate the video so clearly there would be no error so how do you deal with important role in their glory i don't think so i tell you i've been a prosecutor for thirty one years and one thing i've learned is that you can never predict what a jury is thinking but the questions they ask i remember early my career a jury asked specifically to see  the series of photographs displayed in the court that used judge clay mention the almost this is back in the years and that was all he had on an elmo and because they want to see the pictures large an enlarged and they gave us a list of photos and with a every juror went up and looked at every single photo and after the case was over  talking to them and said what was the explain why one photo they wanted to see me so what about the other one and their sponsors we just didn't want to know looking for so i don't think we can we can try to determine what the jury's thinking by what they ask if they have learned over and over through my career so i don't believe that that's really very telling i believe that the evidence is so overwhelming that in this case st of all if in the possession the weapon he was seen by a police officer throwing something into the car after shots were fired the car is fleeing the magazine of the gun so clearly he possessed it now he gives a statement during his testimony that he was it was he he had possessed it was justification and it would be our position that his statement was per se incredible and  have you're saying you never saw this magazine we have evidence of you holding so i think it was proper cross examination i think we had good faith the governor had good faith to ask those questions because of the they had the way with the evidence that the standard good you believe that we had we had a i believe grounded in in logic and reason that it was what we were claiming it was and that it was relevant to the questioning so i don't think it was it was in any kind of prejudicial use we had a belief frankly when you talk about whether or not there was an error the defendant actually did not was not harmed by it if anything he might have been there to benefit up to that time before he testified it was testimony to police officers about this video about the video about him waving a gun saying i'm going to catch somebody that was in there was not it was a challenge an appeal that was it was in evidence so by showing the video we actually gave the film the opportunity to deny it and say that's not me up until there it and that the person in the front seat is wearing a jacket in a shoulder holster and while he's driving in a high speed and fleeing from someone shooting at him he is taking off his jacket and his shoulder holster and then hands it back to the defendant who then doesn't take the gun out but puts the shoulder holster on then takes the gun out and returns fire and then after afterwards when the police chase them  then throws the gun on the seat it is patently absurd and again i'm not you know i've never been an issue does i would use that as an analogy but i did try to think of analogy to show how ridiculous if i were driving a car and the backseat passenger said i'm having an affair lactic shock and i had an epi pen in my pocket his story is analogous to me starting to drive fast to the hospital i'm speaking to the hospital while i was put in the hospital i'm taking my jacket off i hand my jacket in the record that specifically address the issue of self defense and in so the st one which is detailed in the government's brief craig himself where the other car is at the kurd but based on everything i had before me i think it's pretty clear that it applies he wasn't just saying it's strict liability the cou based on everything i had before me i think it's pretty clear that applies so i understand your objection the whole i don't know how for clear to be he specifically that i understand your objection i'm overruling i think it applies it in says mr craig 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 if there is any doubt later in the transcript page six hundred and sixteen the court colloquy with mr craig says to mr craig i have to tell you i don't believe your testimony about how the shoulder holster and everything was transferred to you and what happened with that i mean common sense says that story didn't make sense and then there's the first the government's argue now our argument now that this was only made it on cross and it wasn't even admitted on cross it was it was done withdrawn it it doesn't jive with the record the court's ruling was well you can use it with no limitation but when it was played it wasn't the court gave no limitation on how the jury could consider it when the jury asked to see it again the court didn't say you can't use it or you can only use it for this purpose it said what you have to you just have to rely on your recollection and that and the police testimony it couldn't come in unless the video also came in that would violate the best evidence rule there's no there's no way that a court could allow the police officers to testify about a video and then the government only i didn't because the video came in it was admitted so it's not a violation of the best evidence rule that officers are allowed to testify about a video that comes into evidence but i if if the court had actually withdrawn the video and said yes i'm sorry this is actually i made the wrong ruling but the government now concedes i guess it was that yes i would i would then i would appeal to best evidence rule that testimony show and stricken but the testimony comes in if the video comes in and the video did come on the harmless error point there's kind of two arguments it sounds like the one is well it would have come in if we'd properly authenticated it this way but now the government says well it was the same or a similar jacket four times they said same jacket same jacket same jacket that was the basis for coming on the idea that the lyrics are the same again the lyrics can be similar or are the same it doesn't identify kragen it doesn't identify anybody in particular and that they had a conversation about it does suggest that craig knows something about this video but it doesn't have to be him it can be his friend it can be as cousin i'm hearing for the st time now the argument that there is something you can see on his eye that was in front of the court it wasn't in the briefing i don't have a response to that except that it wasn't relying on the idea that his his testimony was patently incredible partly that's taking liberties with it as well as testimony as he didn't say that the driver took off his jacket he said he handed me a shoulder holster he had with shoulder holster in the middle of a firefight he threw it on himself and started firing the jury is the one who gets to decide whether to believe that or not and the key point there again is the jury i mean counsel's argument that the jury didn't consider this or maybe didn't because we can't divine what they were thinking well if we can't divine what we think what they're thinking we need to send this back because it's the jury's job to decide the credibility of his testimony but the evidence that we did have indicates that they did consider it and