US v. Jadlowe

Filing 920100804

Opinion

var gAgent = navigator.userAgent.toLowerCase()
var gWindows = ( (gAgent.indexOf( "win" ) != -1 ) || ( gAgent.indexOf( "16bit" ) != -1 ) )
var gIE = ( gAgent.indexOf( "msie" ) != -1 )
var bInlineFloats = ( gWindows && gIE && ( parseInt( navigator.appVersion ) >= 4 ) )
var floatwnd = 0

var WPFootnote1 = 'The Hon. David H. Souter, Associate Justice (Ret.) of the\
Supreme Court of the United States, sitting by designation.\
'

var WPFootnote2 = ' All of Jadlowe\'s co-defendants pled guilty.\
'

var WPFootnote3 = ' 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.\
'

var WPFootnote4 = ' 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.\
'

var WPFootnote5 = ' 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\
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."\
'

var WPFootnote6 = ' Agent Simmons testified that the gas and electricity were\
shut off at Jadlowe\'s home address during that time period.\
'

var WPFootnote7 = ' 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.\
'

var WPFootnote8 = ' 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.\
'

var WPFootnote9 = ' 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."\
'

var WPFootnote10 = ' 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." \
'

var WPFootnote11 = ' Simmons testified that much of the communication between the\
conspirators in this case was conducted by using phones as "Direct\
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.\
'

var WPFootnote12 = ' There is a disagreement between the parties about whether\
the record shows that the phone was seized in the frisk. See infra\
Section IIB. \
'

var WPFootnote13 = ' The court found that the phone was seized from Jadlowe\'s\
person at the time of his arrest.\
'

var WPFootnote14 = ' 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.\
'

var WPFootnote15 = ' 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.\
'

var WPFootnote16 = ' 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. \
'

var WPFootnote17 = ' 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.\
'

var WPFootnote18 = ' 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.\
'

var WPFootnote19 = ' 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\
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.\
'

var WPFootnote20 = ' 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." \
'

var WPFootnote21 = ' 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."\
'

var WPFootnote22 = ' 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." \
'

var WPFootnote23 = ' 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." \
'

var WPFootnote24 = ' 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.\
'

var WPFootnote25 = ' 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.\
'

var WPFootnote26 = ' 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).\
'

var WPFootnote27 = ' 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).\
'

var WPFootnote28 = ' 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.\
'

var WPFootnote29 = ' 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\
discussion), available at\
http://www.ndcourts.com/court/jp/minutes/may1999.htm.\
'

var WPFootnote30 = ' 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).\
'

var WPFootnote31 = ' 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.\
'

var WPFootnote32 = '                   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.\
'

var WPFootnote33 = ' 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.\
'

var WPFootnote34 = ' 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. \
'

var WPFootnote35 = ' Column 6, labeled "Direction of Call/Phone No." also states\
whether the call was incoming or outgoing.\
'

var WPFootnote36 = ' 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.\
'

var WPFootnote37 = '  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. \
'

var WPFootnote38 = ' 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. \
'

function WPShow( WPid, WPtext )
{
if( bInlineFloats )
eval( "document.all." + WPid + ".style.visibility = 'visible'" );
else
{
if( floatwnd == 0 || floatwnd.closed )
floatwnd = window.open( "", "comment", "toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1" );
floatwnd.document.open( "text/html", "replace" );
floatwnd.document.write( "\r\n" );
floatwnd.document.write( " p { margin-top:0px; margin-bottom:1px; } \r\n" );
floatwnd.document.write( "\r\n" );
floatwnd.document.write( WPtext );
floatwnd.document.write( 'Close');
floatwnd.document.write( "