United States v. Jarmon

• Decision Date: 15 September 2021
• Docket Number: No. 19-1652, No. 20-1315,19-1652
• Parties: UNITED STATES of America v. Juan JARMON a/k/a J, a/k/a Yizzo, Appellant United States of America v. Edward Stinson, a/k/a E-Black, Appellant
• Court: U.S. Court of Appeals — Third Circuit

14 F.4th 268

UNITED STATES of America

v.Juan JARMON a/k/a J, a/k/a Yizzo, Appellant

United States of America

v.Edward Stinson, a/k/a E-Black, Appellant

No. 19-1652

No. 20-1315

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1a August 27, 2021

Filed: September 15, 2021

Maureen C. Coggins, 509 Swede Street, Norristown, PA 19401, Attorney for Appellant Juan Jarmon

Paul J. Hetznecker, Suite 911, 1420 Walnut Street, Philadelphia, PA 19102, Attorney for Appellant Edward Stinson

Jennifer Arbittier Williams, Acting United States Attorney, Robert A. Zauzmer, Jerome M. Maiatico, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Attorneys for Appellee the United States of America in Appeal No. 19-1652

William M. McSwain, United States Attorney, Robert A. Zauzmer, Emily McKillip, Josh A. Davison, Joseph T. Labrum, III, Office of the United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Attorneys for Appellee the United States of America in Appeal No. 20-1315

Before: HARDIMAN, ROTH, Circuit Judges, and PRATTER, District Judge.^*

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

Edward Stinson and Juan Jarmon were tried, convicted, and sentenced to 30 years’ imprisonment for selling large amounts of crack cocaine in a public housing complex. In this appeal, they challenge evidentiary decisions, the jury verdicts, and their sentences. We will affirm.

I

Stinson and Jarmon each ran drug trafficking conspiracies out of the Norman Blumberg Public Housing Complex in North Philadelphia at various times between 2010 and 2015. The Blumberg Complex included some 500 apartment units in what was intended to be a family-friendly environment that included two playgrounds. Unfortunately, that aspiration was not realized as the large quantity of drugs sold in the Blumberg Complex spurred a joint investigation among local police, the Federal Bureau of Investigation, and the United States Drug Enforcement Administration.

Government agents put up pole cameras, established wiretaps, used confidential informants to make controlled drug purchases, pulled trash, analyzed pen registers, and—after Stinson's arrest and subsequent incarceration in 2012—listened to recordings of Stinson's phone conversations while he was in prison. After authorities completed their investigation in February 2017, the grand jury returned two indictments. The first charged Stinson and twelve others with conspiracy to distribute 280 grams or more of crack cocaine and related crimes. The second charged Jarmon and twelve others with similar crimes.¹ Most of their co-defendants pleaded guilty, but Stinson and Jarmon proceeded to separate trials.

The trials shared a similar structure. In each, the Government called some law enforcement officers to testify about the investigation. These officers gave general overview testimony, explained coded language and investigative techniques, and discussed recorded phone calls they reviewed as part of the investigation. In one recorded call—made by Stinson while in prison—Stinson ceded some of his drug territory to Jarmon.

The Government also called cooperating co-defendants who testified against Stinson and Jarmon. These witnesses explained the ins and outs of drug dealing at Blumberg. Stinson and Jarmon led their conspiracies. Each had his own group of sellers and lookouts with set wages and schedules. They used the Blumberg Complex apartments as stash houses and from there sold crack at all hours of the day.

Juries convicted Stinson and Jarmon of the conspiracy charges and most of the related charges. The District Court sentenced each to 360 months’ imprisonment.

II

The District Court had jurisdiction under 18 U.S.C. § 3231, and we exercise appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Stinson and Jarmon prematurely filed notices of appeal, which we deem timely under Rule 4(b)(2) of the Federal Rules of Appellate Procedure.

Although Stinson and Jarmon were charged in different indictments based on different underlying facts, their appeals were consolidated because they raise a common issue: whether recordings of phone calls Stinson made from prison were admissible at trial. We consider this issue first, and then turn to their separate arguments.

III

Before trial, Stinson moved to suppress recordings of phone calls he made while incarcerated. Because one of these calls was with Jarmon, Jarmon joined the motion. The District Court denied the motion, relying on our opinion in United States v. Shavers , where we held inmates and their interlocutors have no reasonable expectation of privacy in phone conversations if they have reason to know the calls are monitored. 693 F.3d 363, 390 & n.7 (3d Cir. 2012), vacated on other grounds , Shavers v. United States , 570 U.S. 913, 133 S.Ct. 2877, 186 L.Ed.2d 902 (2013). We review the denial of a motion to suppress under a mixed standard: clear error for factual findings and de novo for issues of law. United States v. Perez , 280 F.3d 318, 336 (3d Cir. 2002).

Under Shavers , the motion to suppress had to be denied. Upon entering the prison, Stinson received a prisoner handbook which explained the facility's policies, including that calls are monitored and recorded. This warning is repeated on signs near the facility's telephones and in a recorded message played to both parties before every call. Neither Stinson nor Jarmon claim ignorance; they knew the calls were monitored and recorded. But they argue Shavers is no longer good law and that their calls were protected by the Fourth Amendment despite their knowledge of the recordings.

The Fourth Amendment protects information in which one has a "reasonable expectation of privacy." Shavers , 693 F.3d at 389 (quoting New York v. Class , 475 U.S. 106, 112, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) ). This requires the defendant to subjectively believe the information is private and for that belief to be objectively reasonable. Smith v. Maryland , 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

Until 2018, it was accepted that one could not have a reasonable expectation of privacy in information voluntarily turned over to third parties. See id. at 743–44, 99 S.Ct. 2577. The Supreme Court altered this "third-party doctrine" in Carpenter v. United States , when it held a defendant's cell-site location information (CSLI)—data tracking a cell phone's physical location that is automatically sent by the phone to the cell carrier whenever the phone is used—is protected by the Fourth Amendment. ––– U.S. ––––, 138 S. Ct. 2206, 2217, 201 L.Ed.2d 507 (2018).

The Court recognized CSLI is different. Unlike ordinary business records, the collection of CSLI by cell carriers is "inescapable and automatic" once one decides to carry a cell phone. Id. at 2223. The rare combination of automated disclosure and "deeply revealing" location information prompted the Court to conclude that cell phone users have a reasonable expectation of privacy in CSLI even when it was held by a private third party (a cell phone company). Id. at 2223. Stinson and Jarmon ask us to apply Carpenter to prison calls.

We decline Stinson and Jarmon's invitation to expand Carpenter for two reasons. First, Shavers did not rely on the third-party doctrine, so its holding is unaffected by Carpenter . Shavers held inmates have no expectation of privacy in their phone calls not because the recordings are held by a third party, but because of the nature of incarceration. 693 F.3d at 390 n.7. Prisoners know they are under constant surveillance. They have no general expectation of privacy during their incarceration, including in their own cells. Hudson v. Palmer , 468 U.S. 517, 525–26, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). And the prison's phone policies and warnings to inmates make any subjective expectation of privacy even more unreasonable. See Shavers , 693 F.3d at 390 n.7. That principle applies to both parties on the line. Id. at 389–90. A party at liberty (Jarmon) cannot reasonably expect his call to be private when he is told that his conversation with an inmate (Stinson) is being monitored. Id.

Even had Shavers relied on the third-party doctrine, Carpenter still would not compel a different result. While we need not decide how far Carpenter extends to other technologies, it does not apply to prison phone calls. Unlike an ordinary cell phone user who "in no meaningful sense ... ‘assume[s] the risk’ of turning over a comprehensive dossier of his physical movements" when he turns on his phone, Carpenter , 138 S. Ct. at 2220 (quoting Smith , 442 U.S. at 745, 99 S.Ct. 2577 ), Stinson and Jarmon did assume the risk of surveillance here. After being told their calls were monitored, they continued to discuss drug trafficking and other criminal acts. And unlike CSLI, there is nothing "unique" or technologically advanced about prison phone calls that counsels for extending the Fourth Amendment to that milieu. Id.

For these reasons, we hold that Stinson and Jarmon had no reasonable expectation of privacy in their phone calls. We will therefore affirm the District Court's orders denying their motion to suppress.

IV

Having rejected Appellants’ request to expand Carpenter to prison phone calls, we turn to Stinson's and Jarmon's particular arguments.

A

Stinson argues the District Court abused its discretion in admitting some testimony by FBI Agent Sarah Cardone, the Government's overview witness. See United States v. Pelullo , 964 F.2d 193, 199 (3d Cir. 1992). He acknowledges overview witnesses may "tell the story of [the] investigation" including "how the investigation began, who was involved, and what techniques were used." United States v. Lacerda , 958 F.3d 196, 208 (3d Cir. 2020). But Stinson claims Agent Cardone went too far when she referred to the "Stinson drug trafficking group," Stinson App. 475, told jurors she "learned about the trafficking of crack cocaine by Edward Stinson and ... other members of this organization," Stinson App....