United States v. Jadlowe, 080410 FED1, 08-2449

Docket Nº:08-2449
Opinion Judge:LIPEZ, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. MARC JADLOWE, Defendant, Appellee.
Attorney: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.
Judge Panel:Before Lipez, Circuit Judge, Souter, Associate Justice, and Howard, Circuit Judge.
Case Date:August 04, 2010
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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UNITED STATES OF AMERICA, Appellee,

v.

MARC JADLOWE, Defendant, Appellee.

No. 08-2449

United States Court of Appeals, First Circuit

August 4, 2010

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District 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.

Before Lipez, Circuit Judge, Souter, Associate Justice, [*] and Howard, Circuit Judge.

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 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

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 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 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 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 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.13A 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 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...

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