Motion in Limine No. 7 on Foundation for Video Evidence — United States v. Abdulkadir Nur Salah (D. Minn., Doc. 429)

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Defendant Abdulkadir Nur Salah's Motion in Limine No. 7 Regarding Foundation for Admission of Video Evidence, filed 01/10/25 as Doc. 429 in United States v. Abdulkadir Nur Salah (4), Case No. 22-CR-223(4)(NEB/DTS), in the U.S. District Court for the District of Minnesota. Salah asks the court to confirm that videos are admitted on a showing that a video is what it is claimed to be and is relevant, even if the exact date it was made is not established. He cites Federal Rule of Evidence 901 and Eighth Circuit authority, and points to a video dispute in the Farah trial in May 2024. He argues that foundation testimony need not come from the person who made the recording and that an exact recording date is not required.

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      CASE 0:22-cr-00223-NEB-DTS           Doc. 429     Filed 01/10/25    Page 1 of 5




                    IN THE UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF MINNESOTA

UNITED STATES OF AMERICA,                          Case No. 22-CR-223(4)(NEB/DTS)

                                   Plaintiff,

v.                                                 MOTION IN LIMINE NO. 7
                                                 REGARDING FOUNDATION FOR
4. ABDULKADIR NUR SALAH,                        ADMISSION OF VIDEO EVIDENCE

                                 Defendant.



       Defendant Abdulkadir Nur Salah requests an order clarifying the requirements to

lay foundation for the admissibility of video recordings at trial in this case. Specifically,

Defendant Abdulkadir Salah requests that the Court confirm that videos will be admitted

based on a showing that (1) a video “is what it is claimed to be”; and (2) a showing of

relevance, even if the precise date of the video is not established.

       Video recordings must be authenticated to be admissible. Fed. R. Evid. 901. This

requirement may be satisfied by testimony that an item of evidence “is what it is claimed

to be.” Id; see also United States v. McCoy, No. 20-CR-150 (NEB/BRT), 2022 WL

20101922, at *2 (D. Minn. Feb. 28, 2022), aff’d, 70 F.4th 498 (8th Cir. 2023) (testimony

by witness with “personal knowledge that the photograph depicted the pipe found in

[defendant’s] car” was sufficient to establish authenticity). “The party authenticating the

exhibit need only prove a rational basis for that party’s claim that the document is what it

is asserted to be. This may be done with circumstantial evidence.” United States v.

Needham, 852 F.3d 830, 836 (8th Cir. 2017) (internal quotations and citation omitted).
      CASE 0:22-cr-00223-NEB-DTS          Doc. 429     Filed 01/10/25    Page 2 of 5




       The Eighth Circuit has endorsed a non-exhaustive list of factors to consider in

determining whether foundation has been laid to authenticate audio and video recordings.

United States v. McMillan, 508 F.2d 101, 104 (8th Cir. 1974). But these factors are only

“guidelines,” and recordings may be admitted “as long as the totality of the circumstances

satisfy a court that the recording is reliable.” United States v. Kimble, 54 F.4th 538, 547

(8th Cir. 2022) (citing United States v. Oslund, 453 F.3d 1048, 1057 (8th Cir. 2006)).

       The Court acknowledged the McMillan factors in addressing a dispute over video

evidence during the trial in United States v. Farah but found that they did not control

because there was no evidence of when the video at issue was recorded. United States v.

Farah, No. 22‐CR‐124 (NEB/TNL), Dkt. 521 (May 15, 2024). Some statements made

by the government when initially arguing the video issue during the Farah trial, however,

suggested that foundation for the video was lacking because the witness being asked to

lay foundation did not know “who took the video.” Farah Trial Tr., Vol. 2492:17-

2493:24. Anticipating that issues similar to those in Farah may arise at trial in this case,

Defendant Salah brings this motion to request that the Court establish certain principles

regarding the proper foundation for video evidence in this case.

       First, evidence that a video “is what it is claimed to be” may take the form of

competent testimony that the video accurately depicts the circumstances in question, and

need not come from the person who created a video recording. United States v. Crockett,

49 F.3d 1357, 1359 (8th Cir. 1995) (composite “daytime photograph” taken months after

the crime at issue was properly authenticated by sponsoring witness testimony that the

photo “generally depicted the parking lot on the night of the crime.”); United States v.


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Kandiel, 865 F.2d 967, 974 (8th Cir. 1989) (the government properly authenticated audio

tapes via defendant’s brother’s testimony establishing “that the tapes were made in Egypt

and sent to” the defendant who was living with the brother in the United States and

identifying the speakers in the recording).

       Other circuits have reached the same conclusion. United States v. Manigault, No.

22-1922, 2024 WL 4298144, at *6 (3rd Cir. Sept. 26, 2024) (homeowner’s surveillance

system properly authenticated with testimony from law enforcement about how the video

was recovered and “that the video depicted the events on the recording accurately.”);

United States v. Pinke, 614 F. App’x 651, 653 (4th Cir. 2015) (a video of a prison assault

was authenticated by testimony from a “prison employee . . . that he responded to the

assault, witnessed a nurse videotaping the victim's injuries, and the video depicted

injuries that were consistent with his recollection.”); United States v. Taum, No. 22-

10306, 2024 WL 4562805, at *3 (9th Cir. Oct. 24, 2024) (The government authenticated

surveillance video of an assault by correctional officers with testimony from another

officer that the video “was an accurate representation of the incident, that he had

previously watched the entire video, and that he knew [a defendant had] created the

video.”); United States v. Broomfield, 591 F. App’x 847, 851–52 (11th Cir. 2014)

(government properly authenticated a YouTube video through “circumstantial evidence”

that “identified the individual in the video…[,] established where and approximately

when the video was recorded, and then identified the specific rifle and ammunition

depicted in the video.”)




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       Second, a proponent of photographic or video evidence does not need to establish

the exact date on which the photo or video was made to establish proper foundation. In

United States v. Crockett, 49 F.3d 1357, 1359 (8th Cir. 1995) the Eighth Circuit affirmed

the admission of a daytime crime scene photograph taken “several months” after the

nighttime crime, because testimony established that the photo “generally depicted the

parking lot on the night of the crime” and “can be of some value to the jurors in getting a

visual concept of the parking lot as it existed on the date in question.”

       Similarly, in Banghart v. Origoverken, A.B., 49 F.3d 1302, 1304 (8th Cir. 1995),

photographs offered to show the condition of fuel canisters after the accident at issue

were properly admitted even though evidence could only establish that they were taken

sometime within the six months after the accident.

       Courts in other districts have similarly admitted recorded evidence despite the

proponent’s inability to establish the exact date of recording. See, e.g., Casias v. New

Mexico Dep't of Corr., No. 16-CV-56 JCH/SCY, 2018 WL 4326991, at *1 (D.N.M. Sept.

10, 2018) (denying motion in limine to exclude video evidence taken on date different

from the date at issue); Swinford v. Target Corp., No. 13-CV-4136-MHC, 2015 WL

11216740, at *8 (N.D. Ga. July 13, 2015) (“Assuming Defendant lays the proper

foundation for the introduction of the video, it would not be subject to exclusion merely

because it does not depict the exact area of the incident or the condition of the premises

on the day Ms. Swinford fell.”); Peters v. Huttel, No. 15-CV-9274 (NSR), 2019 WL

6619602, at *13 (S.D.N.Y. Dec. 5, 2019) (video of electric gate admissible even though it

did not “depict the gate on the day of the incident” where it was a “true and accurate


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depiction of the gate in question opening and closing,” “shows the same point of view as

plaintiff would have had,” and depicts “the same speed” that the “gate opened and

closed” on the date of the incident)

       Defendant Abdulkadir Salah acknowledges that the admissibility of video

evidence will need to be handled case-by-case based on the evidence adduced at trial and

does not, at this time, seek admission of any specific piece of evidence. But it is in all

parties’ interest to identify and resolve in advance evidentiary issues such as those

identified herein that may arise at trial.



Dated: January 10, 2025                         GREENE ESPEL PLLP


                                                s/ Surya Saxena
                                                Surya Saxena, Reg. No. 0339465
                                                Nicholas Scheiner, Reg. No. 0402470
                                                222 S. Ninth Street, Suite 2200
                                                Minneapolis, MN 55402
                                                ssaxena@greeneespel.com
                                                nscheiner@greeneespel.com
                                                (612) 373-0830

                                                Attorneys for Defendant Abdulkadir Nur
                                                Salah




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