                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                  No. 12-1094
                                 _____________

                        UNITED STATES OF AMERICA

                                        v.

                              LLOYD BENJAMIN,
                                      Appellant
                                ______________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                    (Crim. Action No. 2-10-cr-00172-001)
                   District Judge: Honorable Alan N. Bloch
                               ______________

                    Submitted Under Third Circuit LAR 34.1(a)
                                October 24, 2012
                                ______________

    Before: HARDIMAN, GREENAWAY, JR., and VANASKIE, Circuit Judges.

                        (Opinion Filed: January 31, 2013)

                                 ______________

                                    OPINION
                                 ______________


GREENAWAY, JR., Circuit Judge.

     A jury convicted Lloyd Benjamin (“Benjamin”) of two substantive counts of

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possession with intent to distribute heroin and conspiracy to possess with intent to

distribute heroin. Benjamin argues that the District Court abused its discretion by

allowing the jury, during deliberations, to listen to recordings of taped conversations that

had been played at trial but not admitted into evidence. For the reasons stated below, we

find that the District Court did not abuse its discretion and will affirm the judgment of

conviction.

                                       I. Background

         We write primarily for the benefit of the parties and recount only the essential

facts.

         On June 3, 2010, Wyatt Newton (“Newton”) was stopped by the Pennsylvania

State Police. Upon searching Newton’s vehicle, the police found ten bricks of heroin and

$5,000 in cash. Newton immediately offered to cooperate with the police. He identified

Benjamin as his drug supplier. The State Police contacted the Drug Enforcement

Administration (“DEA”), which commenced an investigation.

         As part of the federal investigation, agents recorded various telephone calls

between Newton and Benjamin. Additionally, Newton wore a body recording device and

transmitter during several face-to-face meetings with Benjamin and another individual

named Wade. During these meetings, drugs and/or money were exchanged.

         Benjamin was arrested and eventually tried before a jury. At trial, several audio

recordings were played for the jury by both the Government and defense counsel.

         During the charge conference, counsel for the Government noted that “[f]or
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housekeeping matters, I believe that although we played the recordings into evidence, so

they were audio, they were part of the record, I may not have properly moved for their

actual admission after I offered them. To the extent, [sic] I didn’t . . . I move for the

admission.” (App. 346.) Defense counsel objected, arguing that the case was closed.

The District Judge denied the Government’s request to admit the audio recordings.

       During their deliberations, the jury sent a note to the Court asking to hear three

audio recordings — Government Exhibits 9 and 10, and Defense Exhibit 3. Defense

counsel objected to allowing the jury to listen to the recordings again. Relying on Gibson

v. Mayor of Wilmington, 355 F.3d 215, 229-30 (3d Cir. 2004), the District Judge

overruled the objection and allowed the audio recordings to be played for the jury’s

consideration during deliberations.

                                       II. Analysis1

       On appeal, Benjamin argues that the District Court abused its discretion by

allowing the jury to listen to the audio recordings and that his due process rights were

violated.2 Specifically, Benjamin argues that the District Court misapplied the holding in


       1
         The District Court had jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction, pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
       2
         Benjamin’s use of the abuse of discretion standard is inconsistent with his
argument that the District Court allowed the jury to listen to audio recordings that were
not admitted into evidence. If the District Court reopened the record, we would review
that decision for abuse of discretion. Gibson, 355 F.3d at 229. On the other hand, if the
District Court allowed the jury to review exhibits not in evidence, we would determine if
the error in that decision was harmless. United States v. Friedland, 660 F.2d 919, 928 (3d
Cir. 1981).
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Gibson since that case differed factually from the instant matter. Benjamin further

suggests that the District Court should have reopened the case and supplemented the

record by admitting the audio recordings into evidence, a position inconsistent with

defense counsel’s objection to their admission at trial. The Government, while admitting

its own error in failing to seek the admission of the audio recordings, argues that the

District Court did not err when it “tacitly re-opened the record and admitted the three

recordings.” (Br. for the United States 21.)

       We note that the District Court’s action in sending the audio recordings to the jury

was less than pellucid. While the District Court quoted at length from Gibson, a case that

involved the reopening of the record, nowhere did the Court explicitly state that it was

deciding to reopen the record in order to admit the audio recordings. However, after

reviewing the transcript, we conclude that the District Court implicitly reopened the

record to admit the audio recordings, as allowed by the holding in Gibson.

       The District Court did not abuse it discretion in doing so. “Great flexibility is

accorded the District Court in its determination to supplement the record, though it must

avoid perpetrating any type of injustice in so doing.” Gibson, 355 F.3d at 229. We have

identified several factors that the District Court must consider in deciding whether to

supplement the record. These factors include “the burden that will be placed on the

parties and their witnesses, the undue prejudice that may result from admitting or not

admitting the new evidence, and considerations of judicial economy.” Id.

       During trial, the audio recordings were identified, authenticated by Newton, and
                                               4
played for the jury. The Government’s ministerial errors prevented their admission into

evidence. Other than noting that the record was closed at the time the Government

sought to admit the audio recordings, Benjamin has raised no other objection to the

admission of the audio recordings. All of the factors we have identified weigh in favor of

admitting the three audio recordings. That is, we find no prejudice, nor any undue

burden, to either side based on the admission of the recordings. Further, defense counsel

provided no substantive objection to their admission. Under these circumstances, we find

the District Court did not abuse its discretion in reopening the record to admit the audio

recordings.

                                     III. Conclusion

       The District Court reopened the record to admit the audio recordings during jury

deliberations. Since we find that the District Court did not abuse its discretion in doing

so, we will affirm Benjamin’s conviction.




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