United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
Natalee Freeman has filed an appeal of her conviction for
speeding following a bench trial before Magistrate Judge
Thomas M. DiGirolamo. Having reviewed the filings, I find
that although the speedometer certification for the vehicle
Officer Sean Fatokon was driving should have been excluded,
Magistrate Judge DiGirolamo's admission did not amount to
plain error, and the evidence was still sufficient to find
beyond a reasonable doubt that Freeman was speeding.
Accordingly, the Court will DENY the appeal and AFFIRM
Magistrate Judge DiGirolamo's ruling.
February 4, 2016, Natalee Freeman was traveling to work on
Suitland Parkway heading westbound towards Washington,
During that same time, Officer Sean Fatokon with the United
States Park Police also was traveling on Suitland Parkway in
the same direction as Freeman, in response to a call
concerning a motorist in need. Officer Fatokon then observed
Freeman's vehicle passing him, while he was already
traveling above the speed limit at 70 miles per hour
("MPH"). The posted speed limit on Suitland Parkway
is 50 MPH. Based on Officer Fatokon's training and
experience in visually gauging the speed of vehicles, he
estimated that Freeman was traveling at a speed of 80 MPH. As
such, he proceeded to move behind Freeman and pace her
vehicle, so that he could monitor her speed based on his own
speed. Officer Fatokon followed Freeman for about a mile.
During that time, Freeman's initial speed was 75 MPH
based on Officer's Fatokon's pace and speedometer,
continued at 70-73 MPH, and only slowed down to about 70 MPH
before he stopped her for speeding. Officer Fatokon then
issued Freeman two citations, one for speeding, 75 MPH in a
50 MPH zone, based on Freeman's initial speed, and the
second for driving a vehicle in excess of a reasonable and
April 28, 2016, Freeman appeared before Magistrate Judge
DiGirolamo and pled not guilty to both citations;
subsequently a bench trial was held. Officer Fatokon was the
Government's only witness, and during his testimony the
Government offered into evidence a certificate of speedometer
calibration for the police vehicle Officer Fatokon was
driving when Freeman's citations were issued. Freeman,
proceeding pro se, did not object, and the
certification was admitted into evidence. Following the
testimony of Officer Fatokon, Freeman briefly testified,
stating that she was not speeding and that she believed that
the citations were issued based on the unfriendly
conversation she and Officer Fatokon had after he stopped
close of evidence, the trial court found Freeman guilty
beyond a reasonable doubt of speeding, but not guilty for the
second citation of driving in excess of a reasonable and
prudent speed. Freeman then filed this timely appeal, ECF No.
1, asserting that the trial court erred by admitting the
certification without requiring authentication or review by
the Defendant, and that the evidence was insufficient to
support the conviction. Def's Br., ECF No. 10. The
Government then filed its response in opposition, ECF No. 11,
and Freeman submitted her reply, ECF No. 13.
appealing from a magistrate judge's decision for a petty
offense, Rule 58(g)(2)(D) of the Federal Rules of Criminal
Procedure states that "the scope of the appeal is the
same as in an appeal to the court of appeals from a judgment
entered by a district judge." Fed. R. Crim. P.
58(g)(2)(D). As such, the Court reviews "rulings on the
admissibility of evidence for abuse of discretion and legal
conclusions concerning the Rules of Evidence de
novo'' United States v. Wudu, No. 11CR130-LO,
2011 WL 5122666, at *2 (E.D. Va. Sept. 20, 2011) (citing
United States v. Rivera, 412 F.3d 562, 566 (4th Cir.
2005)). Abuse of discretion is found only when a court
"acts arbitrarily or irrationally ... or commits an
error of law." United States v. Williams, No.
10-CR-130, 2010 WL 2802457, at *1 (E.D. Va. July 14, 2010).
preserve a claim of error, Rule 103 of the Federal Rules of
Evidence provides that during trial a party must "on the
record timely object ... and state the specific ground."
Fed.R.Evid. 103(a)(1). If a claim of error is not preserved,
on appeal the Court only will review the evidentiary
objection for plain error. See United States v.
Barbee, 524 F.App'x 15, 18 (4th Cir. 2013). A court
is authorized to correct an unpreserved error '"only
if (1) there is an error, (2) the error is plain, and (3) the
error affects substantial rights.'" Id.
(quoting Henderson v. United States, 133 S.Ct. 1121,
1126 (2013)); see also Fed. R. Crim. P. 52(b).
Courts only apply plain error '"when failure to do
so would result in a miscarriage of justice, such as when the
defendant is actually innocent or the error seriously affects
the fairness, integrity or public reputation of judicial
proceedings.'" United States v. Sanders,
189 F.App'x 207, 209 (4th Cir. 2006) (quoting United
States v. Hughes, 401 F.3d 540, 555 (4th Cir.2005)).
Authentication of Speedometer Certification
failed to properly preserve her evidentiary objection to the
authentication of the speedometer certification during trial.
The record indicates that when given the opportunity to
object to the admission of the speedometer certification,
Freeman did not object and only raised one question about
what the certification showed, which Magistrate Judge
DiGirolamo answered. See Trial Tr. 7. As such, I
will review its admission for plain error only. See
Fed. R. Evid. 103(e); Fed. R. Crim. P. 52(b).
first issue presented in Freeman's appeal is that the
Magistrate Judge erred by admitting the speedometer
calibration certification without requiring it to be
authenticated. See Def's Br. 1. Rule 803(6) of
the Federal Rules of Evidence permits as an exception to the
hearsay rule business records that are "kept in the
course of a regularly conducted activity of a business"
and authenticated by "the testimony of the custodian or
another qualified witness, or by a certification that
complies with Rule 902(11)." Fed.R.Evid. 803(6); see
also United States v. Bacas, 662 F.Supp.2d 481, 486
(E.D. Va. 2009). Courts have interpreted "the term
'qualified witness' broadly, requiring only someone
familiar with the creation and maintenance of the
records." Id. at 487. Additionally, Rule
902(11) of the Federal Rules of Evidence states that business
records that have been certified by the custodian of records
are self-authenticating, providing the certification
establishes that the record meets the requirements of
Fed.R.Evid. 803(6)(A)-(C) (which set out the essential
elements of the business record hearsay exception).
instant case, the Government offered the speedometer
certification for Officer Fatokon's police vehicle during
its direct examination of Officer Fatokon. See Trial
Tr. 6. The certification stated: "I hereby certify under
the penalties of perjury that the contents of the vehicle
calibration for the aforementioned vehicle are true as it now
exist to the best of my knowledge and information."
Gov't Opp'n App. B, ECF No. 11-2. The certification
does not include, however, a signed statement from the
custodian of records or other qualified witness
authenticating the document, as having been made under
circumstances that meet the requirements of Fed.R.Evid.
803(6)(A)-(C). As such, the odometer certification should
have been authenticated through the testimony of the
custodian or another qualified witness. See Fed. R.
Evid. 803(6); see also United States v. Williams,
No. 10-CR-130, 2010 WL 2802457, at *3 (E.D. Va. July 14,
2010) (reasoning ...