United States v. Sherman Houser

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-1381
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UNITED STATES OF AMERICA
v.
SHERMAN HOUSER,
Appellant
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal No. 08-cr-00759-001
(Honorable Gene E.K. Pratter)
______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 14, 2011
Before: SCIRICA, BARRY and VANASKIE, Circuit Judges.
(Filed: 1/25/2011 )
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OPINION OF THE COURT
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SCIRICA, Circuit Judge.
After a jury trial, Sherman Houser was convicted of conspiracy to commit armed
bank robbery, in violation of 18 U.S.C. § 371; armed bank robbery, in violation of 18
U.S.C. § 2113(d); and carrying and using a firearm during a crime of violence, in
violation of 18 U.S.C. § 924(c)(1). On appeal, Houser argues the jury’s deliberations
were unduly influenced by the trial court’s decision to provide it with a paper transcript
of a conversation between Houser and one of his alleged collaborators. Because the
District Court did not abuse its discretion in allowing the jury to use the transcript as a
listening aid, we will affirm.
I.
According to the evidence introduced at trial, Houser and Rondell Inman robbed
the Bank of America on 14425 Bustleton Avenue in Philadelphia at gunpoint on
November 6, 2006. After stealing over $70,000, the two fled in a stolen getaway car
driven by Derrick Hutton. Inman entered into a plea agreement in which he pleaded
guilty to robbing a Wachovia Bank in Ewing, New Jersey and admitted — but was not
charged with — robbing three other banks, including the Bustleton Avenue Bank of
America. Hutton also pleaded guilty to the Bank of America robbery. Both men testified
at Houser’s trial, hoping their cooperation would yield leniency at future sentencing
hearings.1
1
In addition to eliciting the testimony of these two cooperating witnesses, the
government established its case through footage from the bank’s surveillance camera and
through the testimony of bank employees and witnesses whose accounts corroborated the
getaway plan outlined by Houser’s confederates. One such witness, a construction worker
completing a flooring project next to the bank, believed he had witnessed the end of a
robbery, and he wrote down the license plate number of the getaway car. Law
enforcement officials found the vehicle running and unoccupied in the parking lot of an
apartment complex. A knit black skullcap was found on the ground by the passenger
door, and analysis revealed Houser to be a major contributor to DNA found on the hat.
2
As part of his efforts on the government’s behalf, Inman made a consensual
recording of a conversation with Houser, in which the two discussed the government’s
evidence in the Bank of America robbery and Hutton’s role as getaway driver. The audio
recording was played at trial while television screens displayed an electronic transcript
synchronized to the tape. Initially, the prosecutor asked for permission to pass out
individual transcripts to the jurors. Houser’s counsel inspected the transcripts and offered,
“No objection, Your Honor.” Subsequently, the prosecutor hesitated, first rescinding his
request to circulate the transcripts then reverting to his initial request. The trial judge told
the prosecutor to “hold off a little bit on that,” and defense counsel requested the
transcript “not be shown until the tape is actually being played.” The District Court
reiterated that “the transcript itself is really only an aid” and “not evidence.” The
prosecutor then expressed concern that it might be comparatively difficult for the jurors
to read the transcript on the screens and broached the possibility of playing the recording
a second time for their benefit.
Shortly thereafter, the prosecutor asked the court for permission to play the tape
again, this time after furnishing the jurors with individual transcripts. At a sidebar
conference, defense counsel objected, arguing it would be unfairly prejudicial to allow
the government to present the evidence twice. The prosecutor stressed the jurors’ right to
have the transcript “as an aid” to help them process the dialogue. Defense counsel
theorized that “if the jury were to come back during deliberations and say they need to
have [the transcript], then we may have another issue at that time.” Once more
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underscoring “the fact that what the evidence really is, is the audible evidence,” the
District Court sustained defense counsel’s objection.
Prior to closing arguments, the prosecution moved its exhibits — including the
audio conversation — into evidence. During deliberations, the jury requested a copy of
the transcript. Defense counsel objected, arguing the paper transcript had not been
admitted into evidence.2 The District Court reconvened the jury in the courtroom and
allowed the government to play the tape of the conversation with the electronic transcript
again displayed on the screen. Thereafter, the court allowed the jurors to have the paper
copy of the transcript. First, however, the court cautioned,
We do have a transcription of the conversation that is available; however,
and it’s essentially the words, it is, in fact, a copy of the words you see on
the screen. It’s available. It’s not evidence, only what you have heard is the
evidence. And if there’s a discrepancy [between] what you see in writing,
and what you hear, the words, then what you hear is what controls
absolutely. The written word is not evidence, only what you hear and can
hear is evidence, but as an aid to you and only as an aid, we do have a
writing available.
Houser does not argue the paper transcript was an inaccurate reproduction of the
electronic transcript, which was twice put before the jury.
2
Houser insists neither the video screen containing the typed transcript nor the paper
copy of the transcript was admitted into evidence. The government contends the
electronic transcript was admitted without objection. From the record, it appears as
though Houser might be attempting to differentiate between the television screens as
physical objects and the words displayed thereon — counsel appeared to acknowledge
“what was on the computer screen” had been moved into evidence when objecting to the
jury’s request. Regardless, because the jury was admonished to consider the paper
transcript merely an aid to assist its understanding of the properly admitted audio
recording, this evidentiary dispute is immaterial.
4
The jury found Houser guilty on all counts, and the District Court sentenced him
to 300 months’ imprisonment, a five-year term of supervised release, and payment of
$70,194 in restitution. Houser timely appealed.3
II.
“[T]he standard of review for use of [a] transcript as a listening aid is an abuse of
discretion.” United States v. DiSalvo, 34 F.3d 1204, 1220 (3d Cir. 1994). To make certain
such an allowance falls within the proper exercise of its discretion, a trial court should
“advise[ ] the jury as to the limited role to be served by the transcript” before
deliberations. Gov’t of Virgin Islands v. Martinez, 847 F.2d 125, 128 (3d Cir. 1988); see
also DiSalvo, 34 F.3d at 1220 (“[T]he district court carefully warned the jury on several
occasions that the transcript was not evidence.”); United States v. Ademaj, 170 F.3d 58,
65 (1st Cir. 1999) (“Authenticated transcripts may be used by the jury to facilitate its
understanding of the tape recordings themselves provided the court makes clear that the
tapes, not the transcript, constitute evidence in the case.” (internal quotation marks and
citation omitted)). Despite the District Court’s having taken great pains to instruct the
jury on the primacy of the audio vis-à-vis the paper transcript, Houser nevertheless argues
the jury room was tainted by the presence of items not admitted into evidence. See Gov’t
of Virgin Islands v. Joseph, 685 F.2d 857, 863 (3d Cir. 1982).
3
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291.
5
In Martinez, we assessed a similar contention. See 847 F.2d at 128. There, the trial
court refused to admit the transcript of an audio recording into evidence but allowed the
jury to consult the transcript while the government played the tape. Id. Martinez argued
this ruling was an abuse of the court’s discretion, but we found the transcript “did not
introduce new evidence in addition to the tape recording.” Id. In reaching this conclusion,
we approvingly cited cautionary instructions issued by the trial court that helped render
the appellant’s claim “meritless.” Id. In relevant part, those instructions stated:
Ladies and gentlemen of the jury, I am going to permit the tape. The tape is
the evidence. And you are going to see a copy of what the Government says
the tape says, but that is not evidence. That is just an assistance to you. And
as soon as the tape is finished, [the clerk] will collect the transcripts.
What you are going to be receiving are transcripts. And as I said, that is not
evidence. The evidence is on the tape. If there is any dispute about what is
in the transcript and what is on the tape, it is the tape that controls.
Id. This language is strikingly similar to the instructions issued by the District Court here.
The District Court took proper measures to ensure the jury’s verdict was not influenced
by evidence not received during the trial. Therefore, its decision to allow the jury to view
the paper transcript during deliberations was not an abuse of its discretion. See United
States v. Pecora, 798 F.2d 614, 631 (3d Cir. 1986) (“We find nothing in the record to
indicate that the jury relied improperly on the transcript or that the transcript contained
inaccuracies that would substantially affect defendants’ rights in the event the jury had
relied upon it.”).
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III.
For the foregoing reasons, we will affirm.
7