United States v. Jadlowe

United States Court of Appeals
For the First Circuit
No. 08-2449
UNITED STATES OF AMERICA,
Appellee,
v.
MARC JADLOWE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lipez, Circuit Judge,
Souter, Associate Justice,*
and Howard, Circuit Judge.
James L. Sultan, with whom Jonathan Harwell and Rankin &
Sultan were on brief, for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Michael K. Loucks, Acting United States Attorney, was on
brief, for appellee.
August 4, 2010
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
LIPEZ, Circuit Judge. Appellant Marc Jadlowe raises
multiple issues of substance in challenging his conviction on drug
conspiracy charges. Most significantly, he argues that the
district court committed structural error by instructing the jurors
that they could discuss the case among themselves during the trial,
before formal deliberations commenced. We agree that the
instruction was erroneous. We conclude, however, that a showing of
prejudice is necessary to justify a new trial based on premature
jury discussions and that, before the issue of prejudice can be
addressed, the defendant must show that such discussions in fact
occurred. As the record here is silent on whether the jurors
engaged in discussion of the case during the trial, we do not reach
the prejudice question. Hence, Jadlowe is not entitled to a new
trial on that basis. We also find no reversible error in the
suppression and evidentiary rulings that Jadlowe disputes. We
therefore affirm the judgment of conviction.
I.
In November 2005, a federal grand jury charged Jadlowe
and fourteen other individuals in an eleven-count indictment
alleging various drug-related crimes.1 Jadlowe was named in two
counts, one alleging conspiracy to possess and distribute cocaine,
in violation of 21 U.S.C. § 846, and the other alleging possession
and distribution of cocaine on November 4, 2005, in violation of 21
1
All of Jadlowe's co-defendants pled guilty.
-2-
U.S.C. § 841(a)(1). We set forth here the background of the
conspiracy, as depicted by the government at a suppression hearing
and at trial.2
In late September 2005, the Drug Enforcement
Administration ("DEA") initiated a wiretap on the phone of Brandin
Gonsalves, one of Jadlowe's co-defendants, as part of an
investigation into drug trafficking activities in and around New
Bedford, Massachusetts. Within the first week of the wiretap, the
DEA intercepted a call between Gonsalves and another defendant,
John Ferreira, Jr., in which the men discussed using "Uncle
Mar[c]'s" garage to store a suspected shipment of cocaine.3 Law
enforcement agents concluded that "Uncle Marc" was Jadlowe based
on, inter alia, pen register data obtained from Gonsalves's phone
showing that Gonsalves frequently exchanged calls with a phone
number the agents linked to Jadlowe.4
2
Jadlowe does not dispute the sequence of events described by
the government, but he claims that the government did not prove his
knowing involvement in a cocaine conspiracy. He argues in
particular that the admissible evidence failed to show that he was
one of the participants in a series of wiretapped phone
conversations in which the government identified him as a speaker
or that he was the individual seen on a videotape made by officers
doing surveillance at his home.
3
On October 21, 2005, the government obtained court approval
for a second wiretap of Gonsalves's phone and an initial wiretap of
Ferreira's phone.
4
A "pen register" is a device used, inter alia, to record the
dialing and other information transmitted by a targeted phone. 18
U.S.C. § 3127(3); see also United States v. Santana, 175 F.3d 57,
61 n.2 (1st Cir. 1999). DEA Task Force Agent Andrew Simmons
-3-
On October 5, 2005, DEA agents intercepted a call between
Gonsalves and Ferreira at 10:24 p.m., and another call from
Gonsalves to Jadlowe a minute later, in which the men discussed how
much Jadlowe would be paid for the use of his garage to temporarily
store ten to twenty kilograms of cocaine. On October 8, Gonsalves
and Jadlowe discussed putting a generator in Jadlowe's house and
running an extension cord, apparently to provide light for the
unloading of the cocaine in the garage.5 Although Gonsalves told
Jadlowe the drugs were expected to arrive "in a couple of days,"
a call between Gonsalves and Ferreira on October 21 indicated that
the delivery had been delayed because the supplier had run into
problems with law enforcement authorities.6
On November 3, the DEA intercepted a call between
Ferreira and an unidentified male who reported that "[m]y plane got
delayed but, yeah my girl be here early in the morning," prompting
agents to set up surveillance for the next day at Jadlowe's home at
testified that a "pen order" authorized law enforcement officers
"to track who was calling the phone number, what numbers were being
called, the duration of the call, the time of day of the call, and
we would get that real time."
5
Agent Simmons testified that the gas and electricity were
shut off at Jadlowe's home address during that time period.
6
In the call, Ferreira told Gonsalves that he had spoken with
"Fofado" and that "Rudolfo got bagged up by the feds . . .
[c]rossin' you know." Agent Simmons testified that the government
was unable to identify Rudolfo or to connect this conversation with
a specific drug seizure.
-4-
30 Arch Street in Dartmouth, Massachusetts.7 Early on November 4,
DEA Special Agent Michael Barbuti and other law enforcement
officers began physical surveillance near Arch Street while Agent
Simmons and his team monitored the Gonsalves and Ferriera wiretaps
from another location. At about 11 a.m., DEA Special Agent
Jennifer Fallon began surveillance of 30 Arch Street from an
unmarked police truck that was parked on a street parallel to Arch
Street, monitoring the scene through a video camera.8
Shortly before 2 p.m., the multi-faceted surveillance
bore fruit. Fallon saw someone enter the garage at 30 Arch Street,
at which point she turned on the camera and began videotaping. She
then saw the man move items from the garage to the yard.
Meanwhile, the wiretap was capturing calls between Gonsalves and
Jadlowe revealing that Jadlowe was clearing out his garage to make
7
The buildings at 30 Arch Street, which were owned by
Jadlowe's family, consisted at that time of an unoccupied house,
still under construction, that was attached to the garage at the
front of the property and a separate residence behind that
structure (identified as 30R Arch Street). Jadlowe's driver's
license and vehicle registration both listed 30 Arch Street as his
address.
8
Fallon was the only agent with a direct view of 30 Arch
Street, but she testified that she "was just looking at a screen
inside the truck," not out any windows. Other officers would
occasionally drive by the house, but Barbuti explained at the
suppression hearing that they could not park within sight of the
house because "[i]t's a very residential area with no sidewalks,
and vehicles that would be parked there would be easily
recognized."
-5-
room for a truck.9 About an hour later, Jadlowe called Ferreira
and told him the garage was "all set" – the doors were unlocked,
and the back window was open to let in light. As agents watched,
Jadlowe then left the garage and drove away.
At about 3:45 p.m., agents saw a white truck enter
Jadlowe's garage. At 3:53 p.m., Ferriera called Jadlowe and said
that "they" were over at his house, in the garage, "right now" and
had been there for ten minutes, but that there were "no lights over
there." Jadlowe instructed Ferreira to tell them to remove paper
that was covering the door as a way to allow in more light. At
approximately 4:16 p.m., Ferreira reported to Jadlowe that "them
cats are putting the truck back together. They're out of there."
At about 4:30 p.m., agents saw the truck leave the garage and drive
away and, a minute later, Jadlowe called Ferreira to report that he
had seen the truck leaving his street. The two men agreed to meet
at 30 Arch Street. Jadlowe was seen on the video arriving at his
residence a few minutes later, and in a series of three recorded
conversations at about 4:40 p.m., Ferreira asked Jadlowe if he
could "see them things there . . . [r]ight above the window behind
the insulation."10 The men were still on the phone as Ferreira
9
In the first call, at 1:56 p.m., Jadlowe reported that he
was "[t]aking care of the garage." At 2:40 p.m., he told
Gonsalves: "You should be able to fit the truck in here no
problems."
10
Simmons testified that much of the communication between the
conspirators in this case was conducted by using phones as "Direct
-6-
arrived at 30 Arch Street, at which point he told Jadlowe that he
did not want "them things just bring the phone." Ferreira and
Jadlowe were seen driving off together at about 4:50 p.m.
Meanwhile, after being alerted by phone, Massachusetts
State Trooper Stephen Fortin had stopped the white truck for a
license plate violation a short distance from 30 Arch Street.
Officers observed Ferreira drive past the truck and patrol car,
and Simmons testified that contemporaneous phone calls Ferreira
made to Gonsalves and a man named "Snack" revealed that the men
were "in somewhat of a panic" about the truck's detention and the
"need[] to move the stuff" from Jadlowe's garage.
At approximately 5:30 p.m., Agent Fallon saw a car pull
into the driveway of 30 Arch Street and, with the car's headlights
shining into the garage, an individual entered the building. Agent
Barbuti and his team arrived soon thereafter, and he and another
officer encountered Jadlowe coming out a door from the garage.
Jadlowe was arrested, pat-frisked and handcuffed, and a cell phone
was taken from him.11 Agents then entered the garage, where they
saw in plain view ten brick-shaped packages that turned out to be
kilogram amounts of cocaine stacked atop a pile of drywall toward
Connect" devices, a mode in which they functioned like walkie-
talkies. When the phones were used that way, a new "session" was
recorded each time a change in speaker occurred.
11
There is a disagreement between the parties about whether
the record shows that the phone was seized in the frisk. See infra
Section IIB.
-7-
the rear of the garage. Several agents remained in the garage
overnight while Agent Simmons obtained a search warrant for the
property. At about 11 a.m. the next day, November 5, 2005, agents
executed a warrant for Jadlowe's garage and the two houses at 30
and 30R Arch Street. They seized the ten packages of cocaine from
the garage and other items, including phone records, from the
houses.
Following his indictment on the two drug trafficking
charges, Jadlowe filed a motion to suppress the evidence seized on
November 4 and 5. After an evidentiary hearing, the district court
denied suppression of the cocaine and the cell phone,12 but granted
his motion to suppress the evidence seized from the two houses.13
A five-day jury trial concluded on July 7, 2008, with findings of
guilt on both counts. Jadlowe was sentenced to 120-month terms of
imprisonment on each count, to run concurrently, followed by five
years of supervised release.
On appeal, Jadlowe renews his argument that the cocaine
and cell phone should have been suppressed because they were
products of the officers' unlawful entry and overnight stay in his
garage, and he argues that the court also should have suppressed
12
The court found that the phone was seized from Jadlowe's
person at the time of his arrest.
13
The government had in fact conceded that the items found in
the houses must be suppressed because the affidavit filed in
support of the search warrant application established probable
cause to search only the garage.
-8-
phone records that he claims were linked to documents found during
the unlawful search of his home. He also raises a host of
evidentiary arguments: (1) the court should have excluded an
exhibit containing a list of incoming and outgoing wiretapped calls
because that list consisted of inadmissible hearsay; (2) the court
erred in allowing Agent Fallon to give lay opinion testimony
identifying Jadlowe in the November 4 videotape; (3) the court erred
in allowing Agent Simmons to identify Jadlowe's voice in wiretapped
phone conversations; and (4) the court erred in allowing the jury
to view transcripts of wiretapped phone conversations that
identified Jadlowe as one of the speakers. Finally, Jadlowe
asserts that a new trial is required because the district court
virtually invited the jury to engage in premature deliberations
when it instructed the jurors that, as the trial progressed, they
could talk about "interesting things that happened during the
course of the trial, . . . interesting things witnesses say,
significant pieces of evidence."
We begin our discussion with the court's suppression
rulings.
II.
Jadlowe challenges the district court's denial of his
pretrial motion to suppress the cocaine and cell phone found at 30
Arch Street, as well as the court's ruling at trial allowing the
government to introduce records that he claims were the tainted
-9-
"fruit" of the illegal search of his houses. In evaluating the
denial of a suppression motion, we review the district court's
findings of fact for clear error and its legal conclusions de novo.
United States v. Larios, 593 F.3d 82, 92 (1st Cir. 2010). As the
issues differ with respect to each of the three challenged items of
evidence, we address them separately.
A. The Cocaine
The government concedes on appeal that the law
enforcement officers initially saw the ten bricks of cocaine during
an unlawful entry into Jadlowe's garage. The officers did not have
a search warrant, and the government accepts the district court's
implicit finding that the entry was not justified by exigent
circumstances. Noting the distinction "between the securing of a
premises from its perimeter, which does not require exigent
circumstances, and the impounding of a premises by occupying it
from the inside, which does," see United States v. Dessesaure, 429
F.3d 359, 370 (1st Cir. 2005),14 the court pointed out that 30 Arch
Street was under "close physical surveillance" on November 4 and
that the only realistic risk that the cocaine would be moved or
14
We noted in Dessesaure that some police officers "may have
mistakenly believed that they were free, absent a search warrant or
exigent circumstances, to enter a dwelling in order to 'freeze' the
scene." 429 F.3d at 370.
-10-
that any other evidence would be destroyed was eliminated by
Jadlowe's arrest.15
The court went on to conclude, however, that the cocaine
was nonetheless admissible at trial under the principles set out in
Segura v. United States, 468 U.S. 796 (1984), and its progeny. In
Segura, the Court held that an illegal entry to secure a premises
did not preclude admission of evidence found during a later search
of the same location pursuant to a warrant drawn from sources
"wholly unconnected with the [illegal] entry." Id. at 814.
Although the evidence at issue in Segura had been discovered for
the first time during the second, untainted search, the Court in
Murray v. United States, 487 U.S. 533 (1988), extended the
"independent source" doctrine to "evidence that had been observed
in plain view at the time of a prior illegal entry," id. at 535.
The Court stated that the question in such circumstances is
"whether the search pursuant to warrant was in fact a genuinely
independent source of the information and tangible evidence at
issue." Id. at 542. That would not be so, the Court explained,
"if the agents' decision to seek the warrant was prompted by what
they had seen during the initial entry, or if information obtained
15
In light of those circumstances, the court also rejected
applicability of the "'protective sweep' rule" of Maryland v. Buie,
494 U.S. 325 (1990), which allows officers to conduct a warrantless
"sweep" of a premises following an arrest based on a reasonable
belief "that the area to be swept harbors an individual posing a
danger to those on the arrest scene." Id. at 337.
-11-
during that entry was presented to the Magistrate and affected his
decision to issue the warrant." Id.In Dessesaure, 429 F.3d at 367-69, we adopted a two-part
inquiry to implement Murray's holding. In determining whether
evidence discovered in a lawful search pursuant to a warrant may be
admissible in the aftermath of an unlawful entry, we consider: (1)
whether the search warrant affidavit contained sufficient
information to support probable cause without any information
gleaned from the unlawful search; and (2) whether the decision to
seek the warrant was in fact "'independent of the illegal entry,'"
i.e., "'whether it would have been sought even if what actually
happened had not occurred.'" Id. (quoting Murray, 487 U.S. at 542
n.3); see also United States v. Siciliano, 578 F.3d 61, 68 (1st
Cir. 2009) (noting that, "under the independent source doctrine,
'evidence acquired by an untainted search which is identical to
. . . evidence unlawfully acquired' is admissible" (quoting Murray,
487 U.S. at 538)).
Jadlowe concedes that the officers had probable cause to
search the garage even before they saw the cocaine, and he
therefore contests only prong two, i.e., the district court's
conclusion that the agents' decision to seek a warrant was
independent of the illegal entry. The police officers' subjective
intent to seek a warrant is a factual determination subject to
clear error review. Siciliano, 578 F.3d at 69.
-12-
The district court explained its ruling on that issue as
follows:
Here, there can be no doubt but that a warrant
would have been sought even had the agents not
observed the packages of cocaine in the
garage. Too much evidence had been gathered
and too much corroborating conduct on the part
of the defendants had been observed for agents
to simply take the chance that what was
delivered . . . to the garage at 30 Arch
Street was some innocent commodity.
Jadlowe argues that the record does not support the court's
finding. He acknowledges that Agent Simmons, the lead law
enforcement officer in the investigation, testified that he would
have sought a warrant even had the officers not seen the bricks of
cocaine in the garage. Jadlowe claims, however, that Simmons'
assertion is belied by the officer's earlier testimony that the
operational plan called for seizing the cocaine in a motor vehicle
stop after Gonsalves or Ferreira retrieved the drugs from the
garage.16 He emphasizes the absence of direct evidence that, at the
time they entered the garage, the agents intended to obtain a
warrant and cites cases in which such contemporaneous evidence was
16
At the suppression hearing in September 2007, Simmons
testified as follows:
The plan at that time was, if the cocaine was
unloaded at that address, it was anticipated that either
Mr. Gonsalves or Mr. Ferreira would go to that address to
retrieve the cocaine. At that point, once they retrieved
the cocaine to move it to another location, we were going
to do a motor vehicle stop of their vehicle in order to
obtain the cocaine.
-13-
present. See, e.g., United States v. Walton, 56 F.3d 551, 554 (4th
Cir. 1995) (noting that agents had been preparing the search
warrant affidavit for several days before an unlawful garage
entry); United States v. Ford, 22 F.3d 374, 378 (1st Cir. 1994)
(noting that, prior to unlawful entry, police had told defendant of
intent to obtain a warrant).
As an initial matter, we agree that Simmons's statement
of his subjective intent is not necessarily dispositive. See
Murray, 487 U.S. at 540 n.2; Dessesaure, 429 F.3d at 369. We can
also accept Jadlowe's assertion that the officers had neither begun
the process of securing a warrant nor even formed the intent to
obtain one before the quickly developing events of November 4
unfolded contrary to their plans.17 Our cases, however, reject as
"too rigid" the requirement that the officers be actively pursuing
a warrant at the time of the unlawful entry, United States v.
Silvestri, 787 F.2d 736, 746 (1st Cir. 1986), and favor instead a
"flexible standard" based on "[t]he specific facts of each case,"
Ford, 22 F.3d at 377.18 "[T]here is no necessary requirement that
17
At trial, in July 2008, Simmons testified that the plan
conceived the night of November 3 was to "allow the delivery to
take place, secure the address into which it was brought to, and
then apply for a warrant that day." We assume, in Jadlowe's favor,
that the intent to secure a warrant did not develop until the next
day.
18
Silvestri and Ford both involved the "inevitable discovery"
doctrine rather than the "independent source" doctrine, but we have
recognized that the two doctrines are "close relative[s],"
Siciliano, 578 F.3d at 68 n.4. The inevitable discovery doctrine
-14-
the warrant application process have already been initiated at the
time the illegal search took place." Silvestri, 787 F.2d at 746.
Here, we discern no clear error in the district court's
finding that the circumstances as a whole left "no doubt" that the
officers would have sought a warrant – as they eventually did –
once they realized that they needed to enter the garage to gain
possession of the drugs. The record permitted the district court
to find that the officers had not applied for a warrant earlier
because they expected to arrest one or more of the conspirators and
seize the drugs in a vehicle stop. Although the officers' strategy
changed as the events of November 4 unfolded, their testimony
reflects an assumption that cocaine would be – and then was –
delivered to Jadlowe's garage. Simmons testified that when the
wiretaps revealed the conspirators' intent to move the cocaine from
the garage to a different, less accessible location, the officers
determined that they might need to take action at 30 Arch Street.
Barbuti's testimony similarly reflects a belief that there was
applies when the evidence at issue was not later obtained
independently, but it "'inevitably would have been discovered by
lawful means.'" Id. (quoting Nix v. Williams, 467 U.S. 431, 444
(1984)). The Supreme Court similarly has observed that "[t]he
inevitable discovery doctrine . . . is in reality an extrapolation
from the independent source doctrine: Since the tainted evidence
would be admissible if in fact discovered through an independent
source, it should be admissible if it inevitably would have been
discovered." Murray, 487 U.S. at 539. The flexibility we apply in
the inevitable discovery context is at least as appropriate where
the evidence was subsequently obtained by lawful, independent
means.
-15-
cocaine in the garage: "We formulated a plan that we did not want
to allow the kilograms to leave that area for fear of losing them
or having them be moved to a location where we weren't able to
surveil." The district court thus reasonably found that, well
before the officers saw the cocaine, they resolved not to "take the
chance that what was delivered . . . to the garage at 30 Arch
Street was some innocent commodity."
Jadlowe suggests that excusing the agents' unlawful entry
here would seriously undermine the Fourth Amendment's warrant
requirement, allowing officers to "always choose first to illegally
search the premises" and to forego seeking a warrant when no
evidence is found. The Supreme Court in Murray explicitly rejected
such an argument:
As petitioners see the incentives, law
enforcement officers will routinely enter
without a warrant to make sure that what they
expect to be on the premises is in fact there.
If it is not, they will have spared themselves
the time and trouble of getting a warrant; if
it is, they can get the warrant and use the
evidence despite the unlawful entry. We see
the incentives differently. An officer with
probable cause sufficient to obtain a search
warrant would be foolish to enter the premises
first in an unlawful manner. By doing so, he
would risk suppression of all evidence on the
premises, both seen and unseen, since his
action would add to the normal burden of
convincing a magistrate that there is probable
cause the much more onerous burden of
convincing a trial court that no information
gained from the illegal entry affected either
the law enforcement officers' decision to seek
a warrant or the magistrate's decision to
grant it. Nor would the officer without
-16-
sufficient probable cause to obtain a search
warrant have any added incentive to conduct an
unlawful entry, since whatever he finds cannot
be used to establish probable cause before a
magistrate.
487 U.S. at 539-40.
Nor are we persuaded by Jadlowe's attempt to depict this
as the egregious case where suppression is necessary to vindicate
the principles underlying the exclusionary rule. In United States
v. Madrid, 152 F.3d 1034 (8th Cir. 1998), the case on which he
primarily relies, the evidence indicated that, while awaiting a
warrant, "officers went upstairs and downstairs [in a residence] on
two or three occasions, detained and searched the occupants, seized
wallets and placed them in envelopes marked 'evidence,' and leafed
through personal mail and a notebook." Id. at 1040. Here, by
contrast, the district court found that the officers left
undisturbed the targeted, plain-view evidence, and "[t]he most that
agents did that might be said to have compromised the crime scene
was to rearrange some furniture to make themselves more
comfortable."19
In sum, while the district court correctly noted that
"the more appropriate course would have been to secure the garage
from the perimeter," it properly applied the independent source
19
Jadlowe's counsel elicited testimony from Agent Barbuti
acknowledging that the officers were responsible for placing a
white plastic chair, a radio, and a bottle of Coca-Cola near the
cocaine so that they would be "more comfortable while hanging out
in the garage."
-17-
doctrine in refusing to suppress the cocaine seized from Jadlowe's
garage.
B. The Cell Phone
A cell phone linked with phone number (508) 536-1022
("the 1022 phone") was seized by the agents sometime during the
events surrounding Jadlowe's arrest at 30 Arch Street on November
4. Relying on the testimony of Agent Barbuti, the district court
found that the phone was "seized from [Jadlowe's] person" in a
lawful search incident to his arrest. See United States v.
Robinson, 414 U.S. 218, 235 (1973) (holding that a search incident
to "[a] custodial arrest of a suspect based on probable cause" is
reasonable under the Fourth Amendment); United States v.
Nascimento, 491 F.3d 25, 49 (1st Cir. 2007) ("Officers effecting an
arrest are entitled to make a search incident to that arrest.").
In its written ruling on the suppression motion, the court stated
that Barbuti had testified that Lieutenant Robert Andrade, the
arresting officer, "took the phone from Jadlowe during the search
and handed it to him [Barbuti] for safekeeping."
Jadlowe points out that the testimony presented by
Barbuti and Andrade differed from the court's description and
argues that, given the actual record, the court clearly erred in
finding that the seizure of the phone was lawful. Barbuti in fact
testified that he was uncertain about who had given him the phone
-18-
or when he had received it,20 and Andrade testified that he had no
memory of taking the phone from Jadlowe.21 In light of this
testimony, Jadlowe argues, the government failed to meet its burden
of proving that the phone was seized legally. See, e.g., United
States v. Lopez, 380 F.3d 538, 543 (1st Cir. 2004) (noting the
government's burden to prove the lawfulness of a search).
Although the officers' testimony leaves some ambiguity as
to exactly when and how Barbuti acquired the phone, we are
comfortable that the district court's finding that it was seized
from Jadlowe's person at the time of his arrest was not clearly
erroneous. See United States v. Romain, 393 F.3d 63, 69 (1st Cir.
2004) (describing the relevant inquiry as "whether the evidence
presented at the suppression hearing fairly supports the court's
finding"). As the government points out, Barbuti testified
unequivocally that he had been told the phone had been taken from
Jadlowe's person, and Andrade testified that he knew "there was a
cell phone at the location." Jadlowe himself represented that the
20
Barbuti stated: "At some point, I don't know if it was
[right after the pat-frisk] or immediately after doing a protective
sweep of the residence, I was handed the cell phone from Mr.
Jadlowe's person." He said he did not remember who handed it to
him, but confirmed that it was "represented to [him] that it had
come from Mr. Jadlowe's person."
21
When asked if a cell phone was "found on Mr. Jadlowe
subsequent to your arrest of him," Andrade responded: "I know there
was a cell phone at the location. I don't recall it being on Mr.
Jadlowe." He reiterated that reply in response to a follow-up
question: "I don't recall a cell phone being found on his person."
-19-
phone had been on "his person" in his motion to suppress (a point
noted by the district court).22 Moreover, the scope of a
permissible search incident to an arrest is not limited to the
arrestee's person, but includes "'the area from within which he
might gain possession of a weapon or destructible evidence.'"
Nascimento, 491 F.3d at 49 (quoting Chimel v. California, 395 U.S.
752, 763 (1969)). There is no evidence that the officers entered
either of the Jadlowe houses before obtaining the warrant, and the
record therefore supports the view that the phone was found near
Jadlowe, even if not on his person.
To succeed in challenging the denial of a suppression
motion, a defendant "must show that no reasonable view of the
evidence supports the district court's decision." United States v.
Dunbar, 553 F.3d 48, 55 (1st Cir. 2009) (quotation marks and
citation omitted); United States v. Larios, 593 F.3d 82, 92 (1st
Cir. 2010). Jadlowe has not made that showing here.
C. The Phone Records
At trial, the government introduced, as Exhibit 12,
Sprint Nextel phone records that Jadlowe claims should have been
suppressed because they were the fruit of the government's illegal
22
In his motion to suppress, Jadlowe stated: "The defendant
also moves to suppress any evidence seized from his person on
November 4th, 2005, including a cell phone." His affidavit in
support of the motion states that, "[o]n information and belief,
the government intends to use evidence seized from the property and
from my person against me at trial."
-20-
search of his homes on November 5. Exhibit 12 included information
about the 1022 phone, which was the one seized incident to
Jadlowe's arrest, and referred to a second phone with the number
(508) 982-1964 ("the 1964 phone"). Phone records related to the
1964 phone had been seized from Jadlowe's residence, but the court
suppressed them in ruling that the search of the homes was not
supported by probable cause. Simmons testified, however, that the
government had relied on those improperly seized records concerning
the 1964 phone when it issued a single subpoena to Sprint for
information about the two phone numbers.
It appears undisputed that the government's only
information about the 1964 phone derived from the illegal search
and, hence, no evidence about that phone number should have been
admitted at trial. The information in Exhibit 12 about the 1022
phone, however, derived from a court-authorized pen register of
Gonsalves's cell phone in August 2005 and, as such, was not a fruit
of the illegal search of Jadlowe's home.23
Technically, therefore, Exhibit 12 contained both
admissible and inadmissible evidence, and Jadlowe may be correct
that the court erred in allowing it into evidence. But any such
error was certainly harmless. With respect to the 1964 phone,
23
The pen register identified a phone with an IMSI number –
which is like a serial number – of 316010102274660. The Sprint
records connected that IMSI number to the 1022 phone and to the
phone's use as a Direct Connect device with the number
183*913*2639.
-21-
Exhibit 12 says only that "[n]o records were found . . . during the
requested time period." The bulk of the information on the exhibit
relates to the 1022 phone. The document identifies the 1022
account holder as Marc Souza, whose listed date of birth is the
same as Jadlowe's. That section of the document also links the
IMSE number from the pen register with the 1022 phone seized from
Jadlowe, thereby linking him with intercepted calls to and from
Gonsalves and Ferreira.24 Hence, the damaging information in the
exhibit was all lawfully derived.
Jadlowe attempts to sidestep this critical dichotomy
between the admissible and inadmissible information in Exhibit 12
by arguing that the document implicitly suggests that the two phone
numbers are linked. Even if that were true, it would not matter.
The exhibit in effect said nothing about the 1964 number, there was
no substantive testimony about it, and the government did not rely
on it. We agree with the government that, even if admission of
Exhibit 12 were error, it did not influence the verdict and was
24
Each of the two sections of the document, which are
separated by a line of asterisks, begins with a listing of "Request
Type," followed by the explanation "Subscription Info (Basic)."
Each lists a "Date Range" and "Subject Number." The top section
identifies the number as "5089821964" and the bottom section lists
"316010102274660" as the number. The top section then has a
listing for "Comments," which is followed by the "[n]o records were
found" entry. The bottom section lists an account number,
subscriber name, address, comments (the "comment" is that the
account was established in June 2005), and a variety of other
information, including the full 1022 phone number and the Direct
Connect number.
-22-
therefore harmless. See, e.g., United States v. Hicks, 575 F.3d
130, 143 (1st Cir. 2009).
III.
Jadlowe argues that the district court committed
reversible error by telling the jurors that they could discuss the
evidence as the trial progressed, before they commenced formal
deliberations, so long as they did not express an ultimate opinion
about the outcome of the case. Preserved claims of instructional
error are reviewed under a two-tiered standard: we consider de novo
whether "an instruction embodied an error of law," but "we review
for abuse of discretion 'whether the instructions adequately
explained the law or whether they tended to confuse or mislead the
jury on the controlling issues.'" United States v. Silva, 554 F.3d
13, 21 (1st Cir. 2009) (quoting United States v. Ranney, 298 F.3d
74, 79 (1st Cir. 2002)).
Ordinarily, even if we find instructional error, a
defendant is entitled to a new trial "only if it had a prejudicial
effect." Bastien v. Goddard, 279 F.3d 10, 16 (1st Cir. 2002); see
also Fed. R. Crim. P. 52(a) ("Any error, defect, irregularity, or
variance that does not affect substantial rights must be
disregarded."). An exception exists for errors that are "so
intrinsically harmful as to require automatic reversal . . .
without regard to their effect on the outcome." Neder v. United
-23-
States, 527 U.S. 1, 7 (1999); see also United States v. Brandao,
539 F.3d 44, 58 (1st Cir. 2008).
A. Did Instructional Error Occur?
The challenged instruction was delivered before the
opening statements as part of the court's explanation of how the
case would proceed:
I just have a few special instructions
about your conduct as jurors. The first one
is the hardest. You are not to discuss the
case with each other or anyone else until you
retire to the jury room at the end of the case
to deliberate on your verdict.
This rule is not as strict as it
sounds. When I say you are not to discuss the
case, I mean it in this sense. You are not to
express an ultimate opinion about the outcome
of the case.
Personally, even this rule, the way I
state it, I don't think is a terribly good
rule. I understand the reason for it. The
thought is that because some of us tend to be
more opinionated and assertive than others,
jurors who are more assertive will tend to
influence the opinions of fellow jurors if
jurors are talking about the case before they
hear all of the evidence. I think this, in
fact, underestimates the intelligence of
almost all the jurors that I have worked with
over the years, but, nonetheless, this is the
federal rule. It's been abolished in a number
of states, but it is the federal rule. So we
have to respect it. Like I say, whether we
agree with the wisdom of a rule or not, it is
the rule, the rule we follow.
But, again, don't over-interpret what I
said. Of course you'll talk about interesting
things that happened during the course of the
trial, idiosyncracies of the judge and the
lawyers, interesting things witnesses say,
significant pieces of evidence. Just do not
express an opinion about the case, again,
-24-
until you begin deliberations and each have an
opportunity to make your opinions known.
Jadlowe's counsel properly objected to the instruction,
arguing that "it's inappropriate for the jurors to discuss the case
in any way, shape, or form until all of the evidence is in, they've
heard closing argument, and they'[v]e heard your Honor's charge."
The court disagreed:
No. Human nature, if you tell them not to
discuss the case, defies anything we know
about human beings. What's important is that
they not form any ultimate opinions about the
case until they've heard all of the evidence
and that they not express opinions about the
resolution of the case to one another. And
that's – if you want me to repeat the thrust
of that instruction again, I will, but that's
what I meant.
Defense counsel then elaborated on his concern:
Your honor, my objection is I don't
think they should be talking about
"interesting things that the witnesses said."
I just think that that's not what the jury
should be doing. They should be simply – they
can talk about the weather or the Red Sox.
They should not be talking about the case.
The court concluded the colloquy as follows:
I disagree, and I think that's the
reason states, at least those who have a
progressive view of jury service, have
abolished that rule now. In fact, even as to
ultimate opinions as to the case, which I
restrict them from talking about. I think you
will find that the modern trend is against the
old-fashion rule.
The court's instruction was unmistakably erroneous,
including the assumption that the "modern trend" in criminal cases
-25-
is to allow juror discussion. For more than a century, it has been
a common-law principle that "it is improper for jurors to discuss
a case prior to its submission to them," a practice that safeguards
a defendant's "entitle[ment] under the Fifth and Sixth Amendments
to the Constitution to a fair trial to an impartial jury."
Winebrenner v. United States, 147 F.2d 322, 329, 327 (8th Cir.
1945); id. at 329 ("So general is the rule that jurors should not
discuss a case prior to its submission to them, that it has been
enacted into statute in practically all the states of the Union.").
While jury innovations in some jurisdictions now include allowing
jurors to discuss evidence among themselves throughout the trial,
see, e.g., Ariz. R. Civ. P. 39(f),25 such developments have arisen
25
Rule 39(f) states:
If the jurors are permitted to separate during the
trial, they shall be admonished by the court that it is
their duty not to converse with or permit themselves to
be addressed by any person on any subject connected with
the trial; except that the jurors shall be instructed
that they will be permitted to discuss the evidence among
themselves in the jury room during recesses from trial
when all are present, as long as they reserve judgment
about the outcome of the case until deliberations
commence. Notwithstanding the foregoing, the jurors'
discussion of the evidence among themselves during
recesses may be limited or prohibited by the court for
good cause.
See also, e.g., Colo. Jury Instr., Civil 1:4 (4th ed.) (allowing
discussion of evidence "only among yourselves and only in the jury
room when all of you are present"); N.D.R.Ct. 6.11 (permitting
court, without objection, to allow predeliberation discussion in
civil cases).
-26-
primarily in the context of civil cases,26 and even in that setting
such discussions have "remain[ed] controversial." Kelly v. Foxboro
Realty Assocs., LLC, 909 N.E.2d 523, 528 & 529 n.17 (Mass. 2009)
("While the parties in a civil case may consent to juror
discussions during the trial, we would not approve of that practice
in a criminal case.");27 see also, e.g., Valerie P. Hans & Neil
Vidmar, The Verdict on Juries, 91 Judicature 226, 229 (2008)
(noting that allowing jury discussions during trial remains one of
the "more controversial" jury reforms); Juror Discussions During
26
The Arizona Supreme Court Committee on the More Effective
Use of Juries recommended that discussion be permitted in both
civil and criminal trials, but the court accepted the proposal only
for civil trials. Shari Seidman Diamond et al., Juror Discussions
During Civil Trials: Studying an Arizona Innovation, 45 Ariz. L.
Rev. 1, 6 (2003) ("Juror Discussions During Civil Trials"). The
American Bar Association also has endorsed discussion of the
evidence during recesses in civil, but not in criminal cases. See
American Bar Association, Principles for Juries and Jury Trials,
Principle 13(F) (2005) (stating that jurors in civil cases may be
instructed that they are permitted to discuss the evidence among
themselves in the jury room with the same limitations as the
Arizona rule).
27
Indeed, the results of a national survey of jury operations
and practices (the "State-of-the-States Survey") conducted by the
National Center for State Courts Center for Jury Studies, published
in 2007, indicate that the practice is still rarely used. The
relevant report data was generated from 11,752 surveys completed by
judges and lawyers involved in state and federal trials that took
place primarily between 2002 and 2006. Gregory E. Mize et al., The
State of the States Survey of Jury Improvement Efforts: A
Compendium Report 4 (April 2007), available at
www.ncsconline.org/d_research/cjs/pdf/SOSCompendiumFinal.pdf.
According to the report, jurors were allowed to discuss evidence
before formal deliberations in 2.2 % of the civil trials and 0.7%
of the criminal trials in state court, and in 1.3% of the civil
trials and 0.3% of the criminal trials in federal court. Id. at
32.
-27-
Civil Trials, 45 Ariz. L. Rev. at 77 ("Ultimately, like many other
proposals for change, the innovation permitting jurors to discuss
the case during trial has both desirable and undesirable
features.").28
At least for now, the prevailing view in the federal
courts remains that it is improper for jurors to discuss the case
other than during their formal deliberations. In December 2009,
the Judicial Conference Committee on Court Administration and Case
Management reaffirmed the general no-discussion rule in its
proposed model jury instruction on the use of electronic
technology. See Judicial Conference of the United States, Comm. on
Court Admin. and Case Mgmt., Proposed Model Jury Instructions: The
Use of Electronic Technology to Conduct Research on or Communicate
about a Case (Dec. 2009), available at
www.uscourts.gov/News/Viewer.aspx?doc=/uscourts/News/2010/docs/DI
28
The Massachusetts Supreme Judicial Court observed that the
studies on innovative jury practices "have not established
decisively that these jury techniques are beneficial or detrimental
to the outcomes." Foxboro Realty Assocs., 909 N.E.2d at 528 n.13.
Specifically with respect to the bar on juror discussions about the
case while the trial is ongoing, it has been observed that the
prohibition is "based upon historical assumption rather than any
real understanding as to how task-oriented groups actually render
decisions or how discussions prior to the jury instructions would
actually be likely to impact that process." Ted A. Donner &
Richard K. Gabriel, Jury Selection Strategy and Science § 39:3 (3d
ed. & Supp. 2010) ("Jury Selection Strategy"); see also, e.g., N.D.
Sup. Ct. Joint Proc. Comm. Minutes, May 6-7, 1999, at 11-12
(discussing advantages and disadvantages of predeliberation
d i s c u s s i o n ) , a v a i l a b l e a t
http://www.ndcourts.com/court/jp/minutes/may1999.htm.
-28-
R10-018.pdf (proposing that courts tell jurors in pre-trial
instructions that, "[u]ntil you retire to deliberate, you may not
discuss this case with anyone, even your fellow jurors"). Our
circuit's pattern instruction is to the same effect: "First, do not
talk among yourselves about this case, or about anyone involved
with it, until the end of the case when you go to the jury room to
decide on your verdict." Pattern Criminal Jury Instructions for
the District Courts of the First Circuit § 1.07 (1997), available
at www.med.uscourts.gov/practices/crpji.97nov.pdf.29 Case law from
other circuits, including recent decisions, reveals similar
disapproval of discussions by jurors about the case before formal
deliberations begin. See, e.g., United States v. Carey, 337 F.
App'x 256, 260 (3d Cir. 2009) (noting that "[t]he evidence of
premature jury deliberation revealed a departure from the preferred
process," where some jurors reported hearing other jurors
discussing the case); United States v. Cox, 324 F.3d 77, 86 (2d
Cir. 2003) ("'It is a generally accepted principle of trial
administration that jurors must not engage in discussions of a case
before they have heard both the evidence and the court's legal
instructions and have begun formally deliberating as a collective
body.'" (quoting United States v. Resko, 3 F.3d 684, 688 (3d Cir.
29
We note that, although pattern instructions are "often
helpful," United States v. Urciuoli, 513 F.3d 290, 299 n.7 (1st
Cir. 2008), their use is "precatory, not mandatory," United States
v. Tse, 375 F.3d 148, 157 (1st Cir. 2004) (quotation marks and
citations omitted).
-29-
1993)); United States v. Dominguez, 226 F.3d 1235, 1248 n.13 (11th
Cir. 2000) (describing predeliberations jury discussions as a
"violation of the proper process for jury decision-making");
Winebrenner, 147 F.2d at 328-29; see also Jury Selection Strategy
§ 39:3 ("The rule as enunciated in Winebrenner has remained the
standard in most courts in the United States . . . .").
The traditional view that jury discussion of the case
during the trial is improper arises from concerns that jurors will
prematurely form judgments that will be difficult to dislodge later
in the proceedings. See Resko, 3 F.3d at 689; Winebrenner, 147
F.2d at 328-29. The court in Resko cogently summarized these
concerns in a criminal case:
First, since the prosecution presents its
evidence first, any premature discussions are
likely to occur before the defendant has a
chance to present all of his or her evidence,
and it is likely that any initial opinions
formed by the jurors, which will likely
influence other jurors, will be unfavorable to
the defendant for this reason. Second, once a
juror expresses his or her views in the
presence of other jurors, he or she is likely
to continue to adhere to that opinion and to
pay greater attention to evidence presented
that comports with that opinion.
Consequently, the mere act of openly
expressing his or her views may tend to cause
the juror to approach the case with less than
a fully open mind and to adhere to the
publicly expressed viewpoint.
Third, the jury system is meant to involve
decisionmaking as a collective, deliberative
process and premature discussions among
individual jurors may thwart that goal.
Fourth, because the court provides the jury
-30-
with legal instructions only after all the
evidence has been presented, jurors who engage
in premature deliberations do so without the
benefit of the court's instructions on the
reasonable doubt standard. Fifth, if
premature deliberations occur before the
defendant has had an opportunity to present
all of his or her evidence . . . and jurors
form premature conclusions about the case, the
burden of proof will have been, in effect,
shifted from the government to the defendant,
who has "the burden of changing by evidence
the opinion thus formed." [Winebrenner, 147
F.2d] at 328.30
Finally, requiring the jury to refrain from
prematurely discussing the case with fellow
jurors in a criminal case helps protect a
defendant's Sixth Amendment right to a fair
trial as well as his or her due process right
to place the burden on the government to prove
its case beyond a reasonable doubt.
3 F.3d at 689-90 (citations omitted).
To be sure, not all of these reasons have force when the
jurors are expressly told – as they are, for example, in Arizona –
that they may discuss the evidence only in the presence of all
jurors and that they must "reserve judgment about the outcome of
the case until deliberations commence." Ariz. R. Civ. P. 39(f).
Yet, impressions formed about the evidence early on may nonetheless
30
In this case, for example, Jadlowe points out that the
government introduced a number of audio recordings to prove his
involvement in the drug conspiracy and that the jurors could have
concluded early in the case, after discussion among themselves,
that those tapes reflected his participation. Defense counsel,
however, later sought to give those cryptic conversations a more
benign interpretation by introducing other audio recordings
indicating that Ferreira and Gonsalves were involved in various
construction projects with the speaker believed to be Jadlowe and
that furniture was being stored in the garage.
-31-
have a significant impact on the verdict, even if the jurors do not
make their ultimate judgment until the end of the case. In our
view, the traditional rationales remain persuasive.
Of course, not all premature jury discussion about a case
will compromise a defendant's fair trial rights, particularly where
the conversation does not reflect a point of view about the
evidence or the outcome. See, e.g., United States v. Diaz, 597
F.3d 56, 63 (1st Cir. 2010) (noting that jurors apparently
discussed only "a legal principle" and not "the merits of the case
against the defendant"). Discussion such as that endorsed by the
court in this case, however – about "interesting things witnesses
say, significant pieces of evidence" – is inappropriate, even if
the conversation was not what we ordinarily would consider
premature "deliberations." Cf. State v. Washington, 438 A.2d 1144,
1148 (Conn. 1980) (noting that "[d]iscussion is an integral part of
deliberations" and that, "[i]n a constitutional sense, the
distinction between discussion and deliberation is more apparent
than real"). Moreover, while jury discussion that does not involve
expressions of ultimate opinions may be found harmless in
retrospect, it is a different question whether district courts may
give the jury permission at the outset of the trial to talk about
the case before formal deliberations begin. We now hold expressly
that they may not. We thus conclude that the court erred by giving
-32-
the jurors permission to discuss significant aspects of the case as
the trial progressed.31
B. Does the Error Require a New Trial?
1. Was the Instruction Structural Error?
Jadlowe argues that the court's instruction resulted in
the denial of his due process rights and his right to a fair trial,
and that it should be considered structural error requiring
reversal without a showing of prejudice. See, e.g., United States
v. Marcus, 130 S. Ct. 2159, 2164 (2010) (describing structural
errors as "a very limited class of errors that affect the framework
within which the trial proceeds" (internal quotation marks and
citations omitted)); Neder, 527 U.S. at 8. He further contends
that, even if the error is not deemed structural, a new trial is
necessary because the government is unable to prove the absence of
prejudice from the instruction. See Neder, 527 U.S. at 7 (noting
that most constitutional errors may be disregarded where they are
"harmless 'beyond a reasonable doubt'" (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)); United States v. Carpenter,
403 F.3d 9, 11-12 (1st Cir. 2005).
The question in identifying structural error is whether
the error affects the "'framework'" of the trial, "'rather than
31
Although this case does not require us to impose an
affirmative requirement that courts tell jurors not to discuss the
case until deliberations formally begin, such an instruction is
unquestionably the better practice.
-33-
simply . . . the trial process itself.'" Neder, 527 U.S. at 8(quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). In such
instances, "it is often 'difficul[t]' to 'asses[s] the effect of
the error,'" Marcus, 130 S. Ct. at 2165 (quoting United States v.
Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (2006)), because the nature
of a structural error is to "produce[] 'consequences that are
necessarily unquantifiable and indeterminate,'" Neder, 527 U.S. at
11 (quoting Sullivan v. Louisiana, 508 U.S. 275, 282 (1993)). The
frequently cited examples of such errors include the complete
denial of counsel, a biased presiding judge, the denial of a public
trial, and a defective instruction on reasonable doubt. Id. at 8;
see also, e.g., United States v. Curbelo, 343 F.3d 273, 281 (4th
Cir. 2003) (concluding that trial court's decision to proceed with
an eleven-person jury, over defendant's objection, was structural
error requiring reversal).
In the Supreme Court cases finding structural error, the
errors themselves effected a deprivation of rights, so that "[n]o
additional showing of prejudice is required to make the violation
'complete.'" Gonzalez-Lopez, 548 U.S. at 146. The Court explained
that characteristic of structural error in Gonzalez-Lopez, where it
contrasted denial of a criminal defendant's choice of counsel –
which it held to be structural error – from denial of the Sixth
Amendment right to effective representation of counsel – which
requires an additional showing of prejudice. Id. at 147-48.
-34-
Deprivation of the right of choice is "'complete,'" the Court
explained, "when the defendant is erroneously prevented from being
represented by the lawyer he wants, regardless of the quality of
the representation he received." Id. at 148. By contrast,
violation of "the right to effective counsel" depends on the
competence of "whatever lawyer is chosen or appointed." Id.The type of error at issue here has "framework"
implications. If the court's faulty instruction results in early
discussion of the evidence or witnesses by the jurors, their later
deliberations may be prejudiced in ways that would be difficult to
identify or quantify. The jury's deliberative process – the
collective, objective review of the evidence of record, evaluated
as a whole, and guided by the court's closing instructions – may be
compromised as a result of prematurely formed impressions. That
potential harm is unlike the erroneous introduction of a piece of
evidence or a flawed instruction that misstates or omits an element
of the crime. Such errors are discrete trial events whose effect
on the outcome of the trial may be evaluated in light of the
properly admitted evidence or the instruction as a whole. By
contrast, premature discussion raises the possibility that the
jurors will view all of the evidence through a distorted lens, much
like what occurs when the jury is improperly instructed on
reasonable doubt. See Neder, 527 U.S. at 10-11 (noting that a
flawed reasonable doubt instruction is "not subject to harmless-
-35-
error analysis because it 'vitiates all the jury's findings'"
(quoting Sullivan, 508 U.S. at 281)). Where the possibility exists
that premature jury discussions shifted to the defendant "the
burden of changing by evidence the opinion thus formed,"
Winebrenner, 147 F.2d at 328, the possibility exists that the trial
was "an unreliable vehicle for determining guilt or innocence,"
Neder, 527 U.S. at 9.
Yet, the error here differs in a significant way from
those the Supreme Court has labeled structural. Although the
instruction opens the door to discussion "taint[ing] the process by
which guilt [is] determined," Curbelo, 343 F.3d at 285, the
defendant will not necessarily be denied a fair trial as a result
of the error. Despite the instruction, juror discussion may not
take place at all and, even if some preliminary conversation about
the case occurs, it may be tangential to the jurors' determination
of guilt or innocence. Unlike the complete denial of counsel or a
public trial, for example, the harm triggered by the flawed
instruction does not occur – i.e., the constitutional violation is
not "complete" – until prejudicial discussion occurs. It is not
necessarily the case, therefore, that "all or almost all such
errors always 'affec[t] the framework within which the trial
proceeds,' or 'necessarily render a criminal trial fundamentally
unfair.'" Marcus, 130 S. Ct. at 2166 (quoting Fulminante, 499 U.S.
at 310, and Neder, 527 U.S. at 9).
-36-
Jadlowe contends that the error must nonetheless be
considered structural because a defendant would never be able to
probe the jury's deliberations to prove prejudice. Inquiries into
jury deliberations are, in fact, narrowly restricted by Federal
Rule of Evidence 606(b), which bars juror testimony "as to any
matter or statement occurring during the course of the jury's
deliberations." The relevant inquiry, however, is not into the
nature of the formal deliberations that occurred once the
presentation of evidence concluded, but the nature of any juror
discussion about the case prior to the formal deliberations.
Probing such premature discussions is neither impermissible nor
impossible. Indeed, courts routinely examine allegations of juror
misconduct involving improper external influences and
communications among jurors, and we see no relevant distinction
between those contexts and this one. The threshold question would
be whether any premature discussion took place. If so, was it
among all jurors or just a few? Did discussion occur regularly
through the proceedings, or only once – and at what point? What
was the content of the discussion?
We thus conclude that Supreme Court precedent
"insist[s] upon a showing of individual prejudice" when a court
improperly instructs jurors in a criminal case that they may
discuss the evidence before formal deliberations commence. Marcus,
130 S. Ct. at 2166. Indeed, although the practice remains rare,
-37-
the authorization of jury discussion in criminal cases by some
courts and the Arizona Supreme Court Committee's recommendation
that it be permitted in both civil and criminal trials reinforce
our conclusion that the instruction here should not be classified
as structural error requiring automatic reversal of the defendant's
conviction. See supra nn. 25, 26 & related text; cf. Resko, 3 F.3d
at 695 ("[W]e are unwilling to assume the existence of prejudice
because we are far less certain that premature deliberations will
lead to prejudice in every, or nearly every, instance."); United
States v. Cruz, 156 F.3d 22, 28 (1st Cir. 1998) (upholding as
adequate remedy the dismissal of three jurors who were heard
discussing the case during a recess).
2. Prejudice
When a defendant properly preserves an objection to a
trial error, the government bears the burden of proving that the
error was harmless. United States v. Olano, 507 U.S. 725, 734
(1993); Curbelo, 343 F.3d at 278; United States v. Colón-Muñoz, 192
F.3d 210, 222 (1st Cir. 1999). For most constitutional errors, the
government must show that the error was harmless beyond a
reasonable doubt, Chapman, 386 U.S. at 24, and for most non-
constitutional errors, the government must show that the error "did
not have a 'substantial and injurious effect or influence in
determining the jury's verdict,'" Curbelo, 343 F.3d at 278 (quoting
-38-
Kotteakos v. United States, 328 U.S. 750, 776 (1946)). As we shall
explain, we need not decide which of these standards applies here.
Neither the government nor the defendant asked the court
to question the jurors before they commenced formal deliberations
about whether they had discussed any aspect of the case during the
five days of trial proceedings. The record is therefore silent on
that question. If we were to conclude that the defendant preserved
his objection to the erroneous instruction simply by objecting to
it, we could conclude that the government failed to meet its burden
to show harmless error based simply on the absence of evidence that
the jurors did not discuss the case.
We decline, however, to adopt that approach and to take
the serious step of ordering a new trial without any evidence in
the record that the jurors engaged in improper discussions. The
court gave the jurors permission to talk about the case, but it did
not tell them to do so.32 In our view, to justify a new trial based
32
We recognize that one reason given for reconsidering the bar
against allowing jurors to discuss the case as the trial proceeds
is that "the system needs to recognize reality – jurors talk."
N.D. Sup. Ct. Joint Proc. Comm., Minutes, at 11; see also Juror
Discussions During Civil Trials, 45 Ariz. L. Rev. at 10 ("Because
jurors find it difficult to adhere to an admonition not to discuss
evidence, permission to engage in such discussions bridges the gap
between the court's admonitions about forming premature judgments
and juror behavior."); United States v. Klee, 494 F.2d 394, 396
(9th Cir. 1974) (quoting the dissent's observation in Winebrenner
that "'[n]o normal honest Americans ever worked together in a
common inquiry for any length of time with their mouths sealed up
like automatons or oysters.'"). Even accepting that jurors advised
that they may discuss the case ordinarily will do so, we decline to
assume that they will have done so in every case.
-39-
on prejudicial juror discussion, the defendant must make some
showing that the improper conduct in fact arose. The defendant
could, for example, ask the trial judge to inquire of the jurors
whether any premature discussions had taken place. If the court's
questioning reveals that such discussion occurred, the government
would bear the burden of proving that it was not prejudicial. Even
if the court refuses to make the inquiry, the defendant will have
preserved his objection to the instruction by making the request,
and the government would have the burden of showing the absence of
prejudice. The silent record would in that situation mean the
government could not satisfy its burden, and a new trial would be
necessary.
In effect, we conclude that a standard analogous to plain
error applies when a defendant claims he was denied a fair trial
based on an instruction allowing improper jury discussion, but has
failed to show that any discussion took place. This approach does
not diminish the importance of objecting in the first instance to
the instruction that made such conduct "permissible." The
objection ensures that the burden will be on the government to
defend the integrity of the jury's deliberative process when the
defendant also shows, or makes an effort to show, that premature
discussion in fact occurred. In our view, "this approach reaches
an appropriate balance between 'society's interest in punishing the
guilty [and] the method by which decisions of guilt are to be
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made.'" Neder, 527 U.S. at 18 (quoting Connecticut v. Johnson, 460
U.S. 73, 86 (1983) (plurality opinion)).33
Here, the defendant has shown only that the court erred
in telling the jurors that they could discuss the case among
themselves before formal deliberations began. Because the
defendant did not also show that any such discussions took place,
he cannot show that prejudicial predeliberations discussion
occurred. He is therefore not entitled to a new trial on that
basis.
IV.
Jadlowe asserts that the district court erred in
admitting four types of evidence at trial: (1) a summary chart of
wiretapped phone calls, (2) Agent Fallon's testimony identifying
him on the surveillance video she recorded at 30 Arch Street on
November 4, 2005, (3) Agent Simmons's testimony identifying
Jadlowe's voice in wiretapped calls, and (4) transcripts of
33
This case does not require us to decide how a trial court
should assess the prejudicial effect of particular statements made
during premature jury discussions of the case or what standard
should be used in evaluating harmless error. As noted above, the
common law rule arises from the view that predeliberation
discussion in criminal cases jeopardizes the defendant's Fifth and
Sixth Amendment rights to a fair trial before an impartial jury.
The improper instruction itself, however, does not cause
constitutional harm; the risk to a fair trial arises only if
conversations occur that could cause jurors to form premature
judgments about the case. Whether every conversation should
trigger the harmless error standard for constitutional violations
is a question we leave for another day.
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wiretapped conversations that identified Jadlowe as one of the
speakers.
We review the district court's decisions to admit or
exclude evidence for abuse of discretion. Diaz, 597 F.3d at 64.
A. The Summary Chart
Jadlowe argues that Government Exhibit 10, a six-column
chart listing details for twenty-two of the intercepted phone
calls, contained testimonial hearsay that should have been ruled
inadmissible at trial. Specifically, he objects to the final
column on the chart, which identifies the other phone number
involved in each of the listed wiretapped conversations.34 Eleven
of the twenty-two calls were made to or from a number associated
with the 1022 phone seized from Jadlowe. There is no dispute about
the admissibility of the first five columns, which report, inter
alia, the date and time of each call and which targeted phone
number, Ferreira's or Gonzalves's, was involved. That information
also was listed on a computerized printout labeled as Exhibit 9,
which Jadlowe concedes was properly admitted.
The information in Column 6 did not appear in written
form on any other document admitted into evidence, and Jadlowe
correctly points out that there is no evidence in the record about
the creation of Column 6. The government argues that Column 6 was
34
Column 6, labeled "Direction of Call/Phone No." also states
whether the call was incoming or outgoing.
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admissible because the same information was contained in digital
files that were part of Exhibit 8. Exhibit 8 is a compact disk
("CD") that contains the oral recordings of the twenty-two phone
calls listed on Exhibit 10; according to the government, the Column
6 information for each call is appended to its oral recording on
the CD. The testimony at trial indicated that the data on the CD
was not accessible to the jurors, however, and the government at
oral argument essentially confirmed that was so.35
Given the government's concession, we think there is
force to the argument that Column 6 did not qualify as a summary of
evidence already in the record. We nonetheless decline to probe
other theories in support of its admission. Column 6 provided only
one link between Jadlowe and the conspiracy by identifying the 1022
number as the other phone number in some of the intercepted calls.
As we describe below in Section B, the audio and video surveillance
produced much more direct evidence of Jadlowe's participation in
35
In its brief, the government describes Exhibit 9 as "a
computer-generated print-out of some of the embedded data from
th[e] calls." The record does not reveal whether the Column 6
information could have been retrieved in a similar format or how
easy it would be to do so.
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the calls.36 Hence, any error in allowing the list into evidence
was harmless.
B. The Remaining Evidentiary Issues
Jadlowe's three remaining contentions all concern the
ways in which he was identified at trial as the individual who made
the arrangements with Gonsalves and Ferreira for the cocaine
delivery at 30 Arch Street. Agent Fallon identified him in the
surveillance videotape shown at trial by comparing a photograph of
him to the video image. Agent Simmons identified a voice on the
tapes of the wiretapped phone calls as Jadlowe's, even though he
had never spoken with Jadlowe in person; the transcripts of the
wiretapped conversations given to the jury reflected Simmons's
identification of Jadlowe as one of the speakers.
Jadlowe argues that the visual and voice identifications
constituted improper lay opinion testimony because neither
officer's identification was based on prior personal experience
with Jadlowe and "[t]he jury was perfectly capable of drawing its
own independent conclusion[s] based on the evidence presented."
United States v. Garcia-Ortiz, 528 F.3d 74, 80 (1st Cir. 2008); see
36
Exhibit 10's relative unimportance to the case is reflected
in a colloquy that took place at the close of evidence. When
defense counsel renewed the objection to Exhibit 10, the district
court commented that it did not view the document "as being a very
critical piece of evidence linking anything to anything." The
prosecutor agreed and stated that he would not object to its being
redacted or excluded. The court said it would make a decision
after reviewing Agent Fallon's testimony and, later that day, ruled
the exhibit admissible without restriction.
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also Fed. R. Evid. 701 (allowing lay opinion testimony if, inter
alia, it is "rationally based on the perception of the witness" and
"helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue"). He asserts that the district
court also abused its discretion in allowing the government to
provide the jury with transcripts that presented as fact that he
was the speaker.
We agree that the officers' identifications should not
have been allowed as lay opinion testimony because neither Fallon
nor Simmons was in a better position than the jurors to make the
identity judgments. Indeed, Fallon testified that she made the
identification by comparing his image on the screen with a driver's
license photo that was in evidence. We are at a loss to understand
the government's argument that Fallon was better situated than the
jurors simply because she was watching the events as they were
occurring. At the time, she was looking at the same video image
seen by the jurors at trial; the Registry of Motor Vehicle's
photograph also was in evidence.37 In addition, although the
government is correct that "identification of a telephone caller
may be [established] by circumstantial evidence," United States v.
DiMuro, 540 F.2d 503, 514 (1st Cir. 1976) (quotation marks and
37
Fallon also testified that her identification was aided by
information from other officers on the scene confirming that
Jadlowe was the person she was seeing on the video screen. That
reliance on others further diminishes the foundation for her own
identification.
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citation omitted) (alteration in original), the circumstantial
evidence on which Simmons relied to infer that Jadlowe was the
speaker in the wiretapped conversations – the content of the calls
and the physical surveillance reports – also was available to the
jury.
Nonetheless, any error in allowing the officers'
identifications or the related transcripts was unquestionably
harmless. An abundance of circumstantial evidence pointed to
Jadlowe as the individual whom Fallon saw clearing the garage at 30
Arch Street and whom Simmons heard in the phone conversations with
Ferreira and Gonsalves.
In a phone conversation on October 8, for example, the
caller whose voice Simmons identified as Jadlowe's reported to
Gonsalves that he would be getting his hair braided and that he had
been home all day on his birthday. Both items of information in
the call were linked to Jadlowe. According to motor vehicle
records, Jadlowe's birthday was the day before, October 7, and
Simmons, who had seen Jadlowe multiple times before, testified that
he saw Jadlowe with newly braided hair shortly after this
conversation. In a call with Gonsalves on November 4, the speaker
Simmons identified as Jadlowe was addressed as "Uncle Marc," and in
another call the same day, just before 2 p.m., that speaker told
Gonsalves that he was "[t]aking care of the garage" and that he was
"[d]oin' it right now." According to Agent Fallon's testimony, it
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was at about that time that, with other officers' assistance, she
identified Jadlowe as the individual she had seen moving items from
the garage to the yard at 30 Arch Street.
Simmons's ability to identify Jadlowe in each instance in
which Jadlowe was designated on the transcript as the speaker was
supported by the agent's admissible testimony that he had listened
to 25 to 50 calls involving the number associated with the phone
seized from Jadlowe at 30 Arch Street on November 4, 2005, and that
over time he was able to recognize the callers in those wiretapped
conversations after "hearing the same voices every day." He
testified that he had heard no one on that phone other than the
speaker Gonsalves referred to as "Uncle Marc" in the November 4
call. Each of the calls attributed to Jadlowe was thus identified
by Simmons as involving the same voice, including the other calls
described above whose content was linked to Jadlowe.
Hence, even if it were improper for Simmons and Fallon to
have offered their opinions that Jadlowe was the speaker in the
wiretapped calls and the individual in the videotape, we are
confident that any such error did not influence the verdict. This
is equally true of the jury's exposure to the transcripts. Not
only was there compelling circumstantial evidence that Jadlowe was
properly identified as the speaker in the calls, but the district
court also instructed the jurors at the time they received the
transcripts that it was up to them "to make a determination as to
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whether the transcript is correct in its identification of Mr.
Jadlowe as the speaker at the points at which he is so listed in
the transcript." The court emphasized that "the transcript is
only an aid," and that the jurors would "have to look to other
evidence in the case to ensure yourself that that indeed is true."
The court repeated that caution in its charge at the close of
evidence, telling the jurors that if they "believe that the speaker
has been wrongly identified, keep in mind that it is your
understanding of the recording that matters."
On this record, there was no reversible error stemming
from the challenged evidentiary rulings.
V.
Jadlowe has pressed serious concerns about the admission
of evidence and the jury instructions, and on some of those issues
we agree that the district court erred. On the record before us,
however, we cannot agree that those errors require a new trial.
The judgment of conviction is therefore affirmed.
So ordered.
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