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United States v. Freeman

United States District Court, D. Maryland, Southern Division

November 7, 2016

NATALEE FREEMAN, Defendant-Appellant.


          Paul W. Grimm United States District Judge.

         Defendant 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.


         On February 4, 2016, Natalee Freeman was traveling to work on Suitland Parkway heading westbound towards Washington, D.C.[1] 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 prudent speed.

         On 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 her.

         At the 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.


         When 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).

         To 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)).


         I. Authentication of Speedometer Certification

         Freeman 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).

         The 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). Fed.R.Evid. 902(11).

         In the 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 ...

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