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United States of America v. Patrick B. Wallace. No. 13-2160.

BACKGROUND. The defendant was convicted by a jury of possession of at least 280 grams of crack cocaine with intent to distribute, and was sentenced to 288 months in prison. His appeal challenges the conviction.

The defendant was a drug dealer. There was bad blood between him and his nephew Andrew Wallace, and Andrew, already a paid DEA informant, informed on the defendant to the agency. Agents fastened a tiny audio/video recorder on Andrew’s shirt, searched him and his car to make sure he had no drugs, gave him $1250, and sent him to try to buy crack cocaine from his uncle. Agents watched the audio/visual recordings that had been made with the device that Andrew had worn.

Although the recordings made inside the house were dark and blurry and did not exclude the possibility that he’d obtained the drugs not inside the house but from one (or perhaps both) of two men whom he’d been seen to encounter when leaving it, the agents decided they had sufficient grounds for thinking Andrew had obtained the drugs inside the house to justify applying for a search warrant. They applied and it was issued shortly after Andrew’s arrival at the DEA office with the drugs. But before executing the warrant the agents had Andrew go back to the house to buy more crack with another $1250 that the agents gave him, and he returned with 18 more grams. He also wore the audio/visual recording device this second time.

At trial the government introduced into evidence part of the videotape of Andrew’s second drug purchase, but without any sound. The lead DEA agent explained to the jury what he thought the videotape showed—plastic bags containing cocaine and the defendant’s handing crack to Andrew while standing next to a microwave oven inside of which was a measuring cup containing an off-white substance that turned out to be crack-cocaine residue.

The defendant’s most interesting ground of appeal is that showing the videotape of the second buy attempt to the jury, in the absence of Andrew Wallace, violated the defendant’s constitutional right to confront the witnesses against him. Andrew as we know did not testify. He was a “witness” only in the sense that he wore a recording device that produced the depictions that the DEA agent interpreted as evidence that incriminated the defendant. Andrew didn’t operate the device. Like the narrator of Christopher Isherwood’s short story A Berlin Diary, Andrew could have said: “I am a camera with its shutter open, quite passive, recording, not thinking.”

True, had he testified, he might have undermined the probative value of what the videotape showed or seemed to show (or was argued by the DEA agent to show), but he didn’t testify. And remember that the defendant’s lawyer could have asked the judge to compel Andrew to appear at the trial and testify, but didn’t.

Pictures can convey incriminating information (think of the famous scene in Blow-Up in which David Hemmings’s processing of a photo negative finally reveals the corpse). But one can’t cross-examine a picture. The video of the defendant in this case handing crack to his nephew was a picture; it was not a witness who could be cross-examined. The agent narrated the video at trial, and his narration was a series of statements, so he was subject to being crossexamined and was, and thus was “confronted.” Andrew could have testified to what he saw, but what could he have said about the recording device except that the agents had strapped it on him and sent him into the house, where the device recorded whatever happened to be in front of it?

Rule 801(a) of the Federal Rules of Evidence does define “statement” to include “nonverbal conduct,” but only if the person whose conduct it was “intended it as an assertion.” We can’t fit the videotape to this definition.  The defendant had ample opportunity to challenge the reliability of the videotape, not only by cross-examining the agent who narrated it but also by finding an expert who might testify that the videotape had been doctored. But the videotape itself was not a “statement” the maker of which could be “confronted” to test the “statement’s” accuracy.

So there was no confrontation-clause error. But if this is wrong, the error was harmless because of the overwhelming evidence of the defendant’s guilt based on what the search turned up—drugs, some of the DEA buy money, and the defendant’s wallet, all in a pair of jeans in his bedroom—and on the defendant’s uncoerced admission in the front room to his possession of the contraband in the bedroom.

By:  Federal Criminal Defense Attorney Michael J. Petro