                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-1381
                                      ___________

                           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 )
                                  _________________

                              OPINION OF THE COURT
                                 _________________

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.”).




                                              6
                                    III.

For the foregoing reasons, we will affirm.




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