Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, June 30, 2020

Clotaire: Upholding Identity Theft Convictions Over Various Evidentiary Challenges, Including Admission of Mug Shot

In United States v. Clotaire, No. 17-15287 (June 30, 2020) (Grant, Rosenbaum, Hull), the Court affirmed the defendant’s identity theft convictions. 

First, the Court upheld the admissibility of surveillance video images used to identify the defendant.  It found that the still images were self-authenticating business records because there was no dispute that the video was a business record.  The Court rejected the defendant’s argument that he had the right to confront the person who pulled the still images from the video, as the still images were not testimonial statements.  And it also held that business record certifications are not testimonial.

Second, the Court rejected the defendant’s argument that he was denied the ability to present a complete defense.  It found that he was able to sufficiently cross examine government witnesses about its initial identification of someone else in the images.  It also found that two emails were properly excluded as hearsay, and the defense failed to try and use them for impeachment, nor did it subpoena the author of one of the emails.

Third, the government conceded that an officer’s testimony about camera distortion was expert testimony, but the Court found no plain error because the witness had specialized knowledge in that area and connected it to his testimony.  And the government was not required to provide advance notice of expert testimony because the defense never asked for it.

Fourth, the Court rejected the defendant’s argument that there was no proper foundation for a government witness’ identification testimony.  It was irrelevant that the witness met with the prosecutors before testifying.  And the defense had an opportunity to cross examine her about that contact.

Fifth, the Court, after a lengthy discussion of precedent, upheld the admission of the defendant’s mug shot so that the jury could compare it to the surveillance video images.  Despite skepticism about the use of mug shots in criminal trials, the Court found that the mug shot was central to the government’s case, which turned on whether the defendant was the one pictured in the surveillance images.  In addition, the parties stipulated that the mug shot was taken on the date of arrest in the instant offense, removing any inference that it was taken from a prior arrest.  Although the photo may have shown him in prison garb and the height markers, the photo did not show a rogue gallery of criminals, it showed the defendant only from the front (not profile), and it removed other administrative prison markings.  Finally, the debate about its admissibility took place outside the jury’s presence, and the government took steps to mitigate the potential prejudice.