           United States Court of Appeals
                      For the First Circuit


No.   14-1110

                     UNITED STATES OF AMERICA,

                             Appellee,

                                v.

                            SEAN BROWN,

                       Defendant, Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW HAMPSHIRE

          [Hon. Steven J. McAuliffe, U.S. District Judge]


                              Before

                  Torruella, Lynch, and Kayatta,
                          Circuit Judges.


          Theodore M. Lothstein and Lothstein Guerriero, PLLC, was
on brief, for appellant.
          Seth R. Aframe, Assistant United States Attorney, with
whom Donald Feith, Acting United States Attorney, was on brief,
for appellee.



                         November 4, 2015
          KAYATTA, Circuit Judge.          Convicted of three counts of

distribution of a controlled substance and sentenced to serve 120

months in prison, Sean Brown appeals the denial of his motion for

a new trial based on the inadvertent submission of evidence that

had previously been ruled inadmissible.          Finding no reversible

error, we affirm.

                       I.   Facts and Background

          Brown's arrest and conviction were the culmination of an

investigation   that   began   when   an    informant,   Douglas   Landry,

reported to the Nashua, New Hampshire, Police Department that he

was buying crack from Brown and that Brown had threatened him

because of an outstanding drug debt.        Landry agreed to assist the

Nashua police by making three controlled drug purchases from Brown.

Nashua Police also reported making a series of other controlled

purchases of crack from Brown through an undercover officer.

          On February 24, 2010, after Landry's last controlled buy

from Brown, Nashua police arrested Brown.           Federal prosecutors

procured a six-count indictment charging Brown with five counts of

distribution of crack cocaine arising out of purchases reported by

the undercover officer and one count of possession of crack cocaine

with intent to distribute based on crack Nashua police reported

finding in Brown's hat when they arrested him.

          After prosecutors learned of allegations of misconduct

by the undercover officer, they dismissed the original indictment

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with prejudice.       Prosecutors thereafter filed a new indictment,

alleging three counts of distribution of crack cocaine based on

the controlled buys by Landry, plus a fourth count again alleging

possession of crack cocaine with intent to distribute based on the

crack that Nashua police reported finding in Brown's hat as

described in the original indictment.             The court dismissed that

fourth count with prejudice as duplicative of the same count

included in the original indictment that had been dismissed with

prejudice.        The court also granted Brown's motion in limine to

exclude evidence related to the dismissed count.            After thereafter

receiving    an    exhibit   list    from   the   government    that   included

evidence related to the dismissed count, Brown renewed his motion

in limine, which the court again granted, this time from the bench

on the second day of trial.

             At    trial,    the    government    based   its   case   on   law

enforcement's surveillance of Landry's controlled buys with Brown,

audio recordings of Brown talking to Landry, and Brown's video-

recorded interview with Nashua Sergeant Francis Sullivan after

Brown's arrest.       The government presented the testimony of five

surveilling officers to describe the procedure used to monitor the

controlled buys.        Although they did not see Landry give Brown

money, did not see Brown in possession of cocaine, and did not see

Brown give cocaine or any other substance to Landry during the

three controlled buys, the officers testified that they provided

                                      - 3 -
Landry with cash to make the buys, that they kept him in view

throughout the entire buy, and that Landry gave them a quantity of

crack cocaine immediately after each transaction.            Landry and his

vehicle   were   searched   by   the   police   prior   to   and   after   the

controlled buys to ensure that he did not have any drugs or other

contraband on his person, and each time no drugs were found on

Landry prior to the buys.

             The government admitted and played the audio recordings

for the jury.      In the recordings, Brown offered to sell Landry

"soft" or "hard" and expressed his anger with Landry for being

late to their meeting because of "the risk involved." Landry asked

Brown for "the hard."1      Brown also described himself to Landry as

a "businessman" and told Landry that he wished the news was "doing

an exposé" on "drug dealers . . . and the working man . . . like

yourself."

             At trial, the government also played a portion of the

post-arrest interview in which Brown denied being a drug dealer,

but nevertheless admitted that he had traded narcotics for other

narcotics, that he believed he was "addicted" to a "hustler"

lifestyle in which "drugs . . . guns . . . illegal substances"


1  When asked about the meaning of "hard" and "soft" "in the world
of cocaine," Sergeant Sullivan Testified that "soft" refers to
powder cocaine and "hard" refers to crack cocaine.     See United
States v. Albertelli, 687 F.3d 439, 446 (1st Cir. 2012) ("Police
officers commonly help interpret conversations by translating
jargon common among criminals. . . .").
                                   - 4 -
were the only things "providing for" him, and that, in order to

"get by," he "mov[ed]" "[a]nything illegal that you're not supposed

to . . . profit from."

            In   addition   to   playing   portions   of    the   post-arrest

interview at trial, the government put into evidence a video

recording containing both the short portions played at trial and

the lengthier remainder not played at trial.               Inadvertently and

unbeknownst to either party at the time, the full recording

included a short passage referring to drugs found in Brown's hat

after his arrest, evidence of which had been excluded based on the

order granting Brown's motions in limine.         The portion that both

parties agree should not have been admitted included the following

exchange:

            Sgt.   Sullivan:       Okay and I made contact
                                   with you a short time
                                   later      upon    your
                                   arrest . . .
            The Defendant:         No problem.
            Sgt.   Sullivan:       You recall that there was
                                   a   substance  that   was
                                   removed from you hat? Do
                                   you remember this?
            The Defendant:         I recall a camera . . . I
                                   recall your phone . . . I
                                   recall saying you had
                                   something . . . I recall
                                   me asking to see it.
            Sgt.   Sullivan:       Right.
            The Defendant:         And I remember you showed
                                   me what I asked you to
                                   see.

                                   - 5 -
Sgt.   Sullivan:   So you are telling me that
                   you didn't have anything
                   in your possession prior
                   to me making contact with
                   you    and     taking    a
                   photograph   of   what   I
                   allegedly found in your
                   hat?
The Defendant:     I   am   saying   to   my
                   knowledge I said exactly
                   what happened. I came
                   out. I didn't want to get
                   shot. You know what I'm
                   saying.
                    ***
Sgt.   Sullivan:   [The arrest] was fine and
                   you ended up having some
                   stuff on you that is
                   corroborative    of   the
                   investigation . . . you
                   had       product      on
                   you . . . this cocaine
                   that was in your hat. I
                   found it and I took a
                   photograph of that . . .
The Defendant:     You actually.
Sgt.   Sullivan:   I'm not Houdini.
The Defendant:     Is   your   phone     video
                   capable as well.
Sgt.   Sullivan:   I      usually         take
                   photographs though.
The Defendant.     Oh.
Sgt.   Sullivan:   It   takes  like    thirty
                   second videos.
The Defendant:     Yeah like short ones--is
                   I'm talking about.
Sgt.   Sullivan:   Right, but I just took a
                   picture of it.
The Defendant:     Wouldn't     it      have
                   been . . . I mean for the

                   - 6 -
                                     sake        of        the
                                     investigation . . . you
                                     know   like    have   the
                                     video . . . you know be
                                     recording while you're
                                     actually doing it so you
                                     can say okay well we know
                                     this        independently
                                     corroborative    evidence
                                     right here.
          Sgt.    Sullivan:          Right.
          The Defendant:             The video camera don't
                                     care if you're black or
                                     white.
          During closing arguments, both the prosecutor and Brown

himself2 encouraged the jury to listen to the entire recording of

the interview.    During their deliberations the jury asked if they

could have equipment to hear audio when playing a video.

          The    jury     found    Brown     guilty    of   three     counts   of

distribution     of   a   controlled       substance    (crack      cocaine)   in

violation of 21 U.S.C. § 841(a)(1).           Based on the admission of the

unredacted video recording, Brown filed a motion for a new trial

under Federal Rule of Criminal Procedure 33.                The district court

denied the motion "essentially for the reasons given in the

government's opposition."         The district court then sentenced Brown

to 120 months in prison.



2  Prior to and during trial, Brown proceeded pro se, with so-
called standby counsel in the wings. During deliberations, Brown
informed the court that he no longer wished to proceed pro se and
the court ordered Brown's standby counsel to represent him from
that point forward. He has been represented by counsel since that
time.
                                     - 7 -
                          II.    Analysis

          The parties spill much ink in debating the standard of

review applicable to this appeal.    In substance, what happened is

that, by agreement, a videotape was put into the record in normal

course, with the mutually-expressed intent that the jurors be able

to view the video in its entirety.      This is therefore simply not

a case in which a jury became privy to extrinsic prejudicial

material or information not in the record.        See, e.g., United

States v. Santana, 175 F.3d 57, 66 (1st Cir. 1999) ("[T]he jury's

consideration of extrinsic information raises a presumption of

prejudice and the government bears the burden of showing beyond a

reasonable doubt that the extrinsic information did not contribute

to the conviction." (internal citations omitted)).     Rather, it is

a case in which a defendant now argues on appeal that evidence

should not have been admitted.    In normal course, such an appeal

would proceed on plain error review where the evidence went in

without objection.   Arrieta-Agressot v. United States, 3 F.3d 525,

528 (1st Cir. 1993) (applying plain error when no objection was

made to the mistake at trial). Here, though, the general substance

of the objection was previously raised by Brown and actually

accepted by the district court in its in limine orders, with the

lack of a subsequent particularized objection to the pertinent

portion of the video flowing, perhaps in part, from reliance on an

expectation that counsel for the government would comply with that

                                - 8 -
order.    Of course, there is no suggestion here that government

counsel did not try to comply.         Rather, this is a case of

overlapping oversight, and defendant shared in the responsibility

of ensuring the exclusion of the inadmissible evidence.

           In the end, we need not decide how to frame or gauge our

review because, even under the harmless error test advocated by

Brown, Brown would lose.    Under that test, the government bears

the burden of persuasion to show that "it is highly probable that

the error did not influence the verdict."   United States v. Piper,

298 F.3d 47, 56 (1st Cir. 2002).3   The evidence against Brown was

powerful. Brown's defense reduced itself to suggesting that Landry

framed him by supplying the police with his own drugs that he

falsely claimed to have received from Brown, a subterfuge made

possible, Brown posits, because the police admittedly did not go

so far as to search Landry's anus before each of the controlled

buys.    The problem with this defense (apart from its failure to

explain what happened to the cash provided for each buy, how Landry

could have afforded to arrive at the buys with drugs, and how

Landry extricated and produced the bags to the officers while under


3    In his brief, Brown applies the "constitutional error"
standard which requires the beneficiary of the error to "prove
beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained." Chapman v. California, 386
U.S. 18, 24 (1967)(emphasis added).       There is, however, no
constitutional issue at stake in Brown's evidentiary challenges to
the admission of the full video on the grounds that it is more
prejudicial than probative.
                               - 9 -
constant surveillance without creating suspicion) was Brown's own

words as memorialized in his several recorded conversations with

Landry and in his jailhouse recorded interview.          It is highly

unlikely that any reasonable person who listened to the admissible

portions of those recordings would have had any doubt that Brown,

not Landry, was supplying the drugs.

          Conversely, the inadmissible portion of the interview

was itself minimally prejudicial.         United States v. Dunbar, 553

F.3d 48, 60 (1st Cir. 2009) (finding harmless error when the

evidence was minimally prejudicial). This portion of the recording

was neither mentioned nor referenced at trial and Brown never

explicitly admitted that he had crack cocaine in his hat at any

time during trial or during the interview.           The inadmissible

portion of the interview was brief and ambiguous--there is little

context for what is being discussed, the word "cocaine" is used

only once by Sullivan, and Brown never admits to whether there was

actually anything in his hat.       United States v. Wood, 924 F.2d

399, 402 (1st Cir. 1991) (finding harmless error "[i]n light of

the other evidence and the ambiguous content" of the evidence).

Without   additional   context     for     or   explanation   of   this

conversation, it is hard to imagine that a "hypothetical average

juror," United States v. Boylan, 898 F.2d 230, 262 (1st Cir. 1990)

(quoting United States v. Calbas, 821 F.2d 887, 896 (2d Cir.



                                 - 10 -
1987)), would understand or place much weight on this dialogue in

reaching his or her verdict.

            In   short,    we   find    it    "highly     probable"   that    the

submission of the inadmissible portion of the recording, even if

actually viewed and considered by the jury, did not influence the

verdict.   See United States v. Tejeda, 974 F.2d 210, 215 (1st Cir.

1992)     (upholding      defendant's        conviction     under     the    non-

constitutional harmless error test despite an evidentiary error

because it was "highly probable" that it did not influence the

verdict in light of other "overwhelming" circumstantial evidence

against the defendant).

                            III.       Conclusion

            Because we conclude that any error in offering and

admitting the pertinent portion of the video was harmless, we

affirm.




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