United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 3, 2006 Decided June 5, 2007
No. 05-3066
UNITED STATES OF AMERICA,
APPELLEE
v.
COLLIN BENTLEY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr000388-01)
Daniel K. Dorsey argued the cause and filed the brief for
appellant.
Barry Wiegand, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney at the time the brief was filed, and Roy W.
McLeese, III, David B. Goodhand, and Alexander D. Shoaibi,
Assistant U.S. Attorneys.
Before: GARLAND and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: After four days of trial, a jury
convicted defendant Collin Bentley of four drug and gun crimes.
On this appeal, Bentley argues that his convictions should be set
aside because several items were inadvertently sent to the jury
room during the course of the jury’s deliberations -- specifically,
an envelope containing cash that was described at trial but never
entered into evidence, and police labels attached to two bags
containing drug evidence. We conclude that the errors were
harmless and therefore affirm the judgment of the district court.
I
On June 18, 2003, officers of the Metropolitan Police
Department (MPD) executed a search warrant at 901 Hamilton
Street, N.W. in Washington, D.C. When the officers entered the
house, Bentley was standing in the doorway to an upstairs
bedroom. They found $10 and a rock of cocaine base in his
pocket. Under the bed in the bedroom was a locked safe
containing thirteen ziplock bags of cocaine base, $4,816 in cash,
and a digital scale. Elsewhere in the room, the officers
discovered numerous other ziplock bags of cocaine base and
marijuana, additional empty ziplocks, razor blades with cocaine
residue, $620 in cash, two semi-automatic pistols, and a ring of
keys. In all, the officers recovered approximately 50 grams of
cocaine base, 100 grams of marijuana, and $5,446 in cash.
Officer Bryan DiGirolamo put the cocaine base into one plastic
evidence bag, the marijuana into another, and heat-sealed both
bags. He put the cash into a property envelope.
On September 4, 2003, a grand jury returned a four-count
indictment against Bentley and Fern Coates, who was also
present at 901 Hamilton Street when the police executed the
search warrant. Bentley was charged with possession of a
firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).
Bentley and Coates were both charged with possession with
3
intent to distribute five grams or more of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii); possession
with intent to distribute marijuana, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(D); and using, carrying, and possessing a
firearm during a drug-trafficking offense, in violation of 18
U.S.C. § 924(c)(1).
The case went to trial in January 2004. The bulk of the
government’s evidence consisted of the testimony of four MPD
officers who participated in the search. The court admitted into
evidence most of the items described above, including the guns,
scale, safe, ziplock bags, and heat-sealed evidence bags
containing the cocaine base and marijuana. Although the
government’s witnesses testified about the recovery of the
money, and the envelope of cash was identified as an exhibit,
the prosecutor did not offer it into evidence.
In addition to the defendants’ presence in the house, the
government relied on several pieces of evidence to connect them
directly to the contraband that the police recovered during the
search. First, an MPD officer testified about the ring of keys he
found in the bedroom of the house: one key opened the safe
containing the drugs, cash, and scale; one opened the front door
of 901 Hamilton Street; and the last two opened the door and
started the ignition of a white 1990 Chevrolet Lumina that was
parked outside the house when the officers arrived. Second, the
officer testified that he had observed Bentley driving the
Chevrolet on numerous occasions, and that he had never seen
anyone else use the vehicle. Third, the government introduced
a certified copy of Bentley’s driver’s license, which listed his
address as 901 Hamilton Street. Finally, as to Coates, the
prosecution introduced evidence that the closet in the bedroom
where the contraband was found contained women’s clothing,
including a coat with Coates’ driver’s license and Social
Security card in the pocket.
4
Neither defendant called witnesses or presented exhibits.
After deliberating for a day, the jury convicted Bentley on all
counts. Coates was acquitted.
Following the verdicts, the district court discovered that the
jury had asked to see the drug evidence during its deliberations.
In response, a deputy United States marshal had delivered a box
of evidence to the jury room. The box contained, among other
things, the heat-sealed drug exhibits, which had been admitted
into evidence, as well as the property envelope containing
$5,446 in cash, which had not been admitted.
Bentley moved for a new trial based on the jury’s receipt of
these items. As to the cash, Bentley argued that the money had
not been admitted, and that its submission to the jury prejudiced
his case. As to the bags of drugs, Bentley objected that each bag
had a police label bearing (inter alia) his name and the Hamilton
Street address. Although defense counsel conceded that he had
not objected to the admission of the bags or their labels at trial,
he explained that he had “asked the courtroom deputy clerk to
let him know if the jury asked for the narcotics so that he could
present his objection to the evidence label” to the court, and that
the clerk had assured counsel that he would do so. United States
v. Bentley, No. 03-0388-01, slip op. at 5 (D.D.C. May 6, 2004)
(order denying motion for a new trial).
Following an evidentiary hearing, the district court first
determined that the marshal’s delivery of the evidence to the
jury, without notifying the parties, had been “an honest
mistake.” Id. at 2. The court then concluded that, although the
delivery constituted error, the cash was merely “the physical
embodiment of evidence the jury had already seen and heard
about,” and that the defendant had “shown no prejudice from the
jury’s consideration” of the cash itself. Id. at 3. Regarding the
drug exhibits, the court assumed for purposes of the motion that
5
counsel’s discussion with the clerk constituted a timely
objection, and that the court would have ordered the labels
removed if it had heard that objection. See id. at 5-6. The court
concluded, however, that the defendant was not prejudiced by
submission of the labels. It therefore denied his motion for a
new trial. See id. at 9.
Bentley now appeals, contending that the marshal’s delivery
of the cash and labeled drug evidence requires reversal of his
conviction.
II
There is no dispute that the $5,446 in cash was never
offered into evidence by the government or admitted by the
district court. This court has held “that consideration by the jury
of [material] not in evidence is error,” and that if the error is not
harmless, the conviction will be reversed. United States v.
Treadwell, 760 F.2d 327, 339 (D.C. Cir. 1985) (citing Dallago
v. United States, 427 F.2d 546, 553 (D.C. Cir. 1969)); see
United States v. Lampkin, 159 F.3d 607, 614 (D.C. Cir. 1999).
Where admission of the material would at worst have been
nonconstitutional error (or no error at all), we apply the harmless
error test set forth in Kotteakos v. United States, 328 U.S. 750,
764-65 (1946). See Treadwell, 760 F.2d at 339; see also United
States v. Holton, 116 F.3d 1536, 1544 (D.C. Cir. 1997);
Dallago, 427 F.2d at 560; see generally United States v. Powell,
334 F.3d 42, 45-46 (D.C. Cir. 2003) (describing the difference
between the Kotteakos test for harmless nonconstitutional error,
and the test for harmless constitutional error articulated in
Chapman v. California, 386 U.S. 18, 24 (1967)). Bentley
concedes that if the cash had been offered into evidence at trial,
he would have had no basis for an objection, see Oral Arg.
Recording at 1:55, and both parties agree that Kotteakos is the
correct test for evaluating the submission of the cash to the jury,
6
see id. at 10:05. Under that test, we will affirm a conviction if
the government demonstrates that an error did not have a
“substantial and injurious effect or influence in determining the
jury’s verdict.” Kotteakos, 328 U.S. at 776; see Powell, 334
F.3d at 45.
This court has further held that, “when an extraneous
document submitted to the jury is merely cumulative of other,
properly admitted evidence, the transmittal is harmless error.”
Treadwell, 760 F.2d at 339; see Holton, 116 F.3d at 1544
(finding that the erroneous submission of unredacted tapes was
harmless because “the information on the tapes was only a
portion of a larger set of facts that the prosecution put before the
jury through proper means”). We agree with the district court
that the physical presence of the money in the jury room was
harmless because it was cumulative of properly admitted
evidence.
Although the government never formally introduced the
cash into evidence, two MPD officers testified that they
recovered cash from the bedroom and described the locations
where it was discovered. Officer DiGirolamo testified that he
seized $4,816 from the safe found under the bed, as well as $620
found in a dresser, see Trial Tr. 13-14, 29, 31 (Jan. 28, 2004);
Officer Andre Wilson testified that he recovered $10 from
Bentley’s pocket, see id. at 118. The total of these seizures was
$5,446, the amount of money contained in the government
exhibit that the marshal erroneously gave the jury. In addition,
and without defense objection, DiGirolamo “identified and
examined the evidence bag that contained the currency in full
view of the jury.” Bentley, No. 03-0388-01, slip op. at 3; see
Trial Tr. 14 (Jan. 28, 2004). Moreover, the prosecution played
for the jury (again, without objection) a videotape of the search,
which showed both the cash inside the safe and the cash
7
recovered from the dresser. Bentley, No. 03-0388-01, slip op. at
2-3; see Trial Tr. 53 (Jan. 27, 2004).
Bentley does not dispute this characterization of the
evidence that was before the jury. Nonetheless, he maintains
that the cash was not merely cumulative for two reasons. First,
he notes that, “[u]pon[] receiving the currency, the jurors were
able to hold and smell” it. Appellant’s Br. 19. But Bentley does
not suggest, and we cannot imagine, a reason why the money’s
tactile and olfactory properties would have had a “substantial
and injurious effect or influence” on the jury’s verdict.
Kotteakos, 328 U.S. at 776.
Second, Bentley charges that, with the cash in hand, the jury
could have learned the denominations of the bills. This was
prejudicial, he explains, because the government’s expert
testified that drugs are often sold in ten- and twenty-dollar
transactions; hence, the presence of currency in those
denominations could have supported the government’s charge
that the drugs found in the house were intended for distribution.
But as defense counsel conceded at oral argument, there is
nothing in the record to suggest that the currency actually was
in tens and twenties. See Oral Arg. Recording at 2:55.
Moreover, Bentley’s trial strategy was not to dispute that the
bedroom was the site of a drug-distribution operation, or that the
cash was its proceeds. Indeed, that would have been a virtually
hopeless proposition, given that the bulk of the money was
recovered from a safe that also contained a multitude of bags of
cocaine base, along with a digital scale. Instead, Bentley’s
defense was that the money and drugs did not belong to him.
See Oral Arg. Recording at 4:55; see also Trial Tr. 29 (Jan. 27,
2004) (defendant’s opening statement). The denominations of
the bills had no relevance to that defense, and we therefore
8
perceive no way in which the defendant was prejudiced by the
submission of the bills to the jury.1
III
We next consider whether the jury’s access to the labels
attached to the bags of drug evidence was harmless under the
Kotteakos test.2 The government argues that our review should
be limited by the more stringent “plain error” standard, rather
than the “harmless error” standard, because Bentley failed to
object when the bags (with the labels attached) were introduced
into evidence during the trial. See United States v. Olano, 507
U.S. 725, 734 (1993) (explaining the difference between the
harmless error and plain error standards); United States v.
Coumaris, 399 F.3d 343, 347 n.1 (D.C. Cir. 2005) (same). The
government is correct that when a defendant has failed to timely
object to an error at trial, we apply plain error review even if he
subsequently raised the issue in a motion for a new trial, as
Bentley did here. See United States v. Thompson, 27 F.3d 671,
1
The facts of this case differ sharply from those of United States
v. Dallago, where we held that the jury’s consideration of a document
not in evidence did require reversal. 427 F.2d at 560. In that case, the
document in question contained “inherent[ly] prejudicial” allegations,
id., “associating the accused with criminality not involved in the trial,”
id. at 554. Moreover, those “allegations of illegality were plainly not
cumulative to evidence relating to any of the offenses charged.” Id.
at 559.
2
The labels were filled in by Officer DiGirolamo, who testified
at the trial and was subject to cross-examination. We review the
(assertedly) erroneous admission of hearsay by such a testifying
declarant for harmless error under the Kotteakos test, rather than under
the Chapman test applicable to constitutional error. See Powell, 334
F.3d at 45; see also United States v. Gurr, 471 F.3d 144, 153 (D.C.
Cir. 2006).
9
673 (D.C. Cir. 1994); see also United States v. Roy, 473 F.3d
1232, 1237 (D.C. Cir. 2007). This case, however, is
complicated by the fact that Bentley’s counsel presented his
objection to the courtroom deputy clerk, who assured him that
he would be given an opportunity to raise it with the court
before the bags were given to the jury. In evaluating the
objection, the district court assumed without deciding that this
conversation preserved Bentley’s objection, and that the court
would have excluded the labels as hearsay had the objection
reached it before the bags went to the jury room. Even with
those assumptions, the district court declined to reverse the
defendant’s conviction, concluding that any error was harmless.
Accepting the same assumptions arguendo, we agree with the
court’s conclusion.
The labels in question are pre-printed forms, known as PD
95s, that an MPD officer filled in after the search of 901
Hamilton Street. The two labels (one on the bag of cocaine base
and the other on the bag of marijuana) are identical in all
relevant respects. They contain blanks that the officer
completed as follows: a blank for “Defendant,” filled in with
Bentley’s name; a blank for “Address,” filled in with “901
Hamilton Street NW”; and a blank for “Charge,” inscribed with
“PWID w/ Armed.” App. 95-96.3 The labels also listed
Bentley’s sex, race, height, weight, eye and hair color, and
birthplace. Finally, the labels contain physical descriptions of
the material inside each bag and administrative details such as
the date, complaint number, and name and signature of the
collecting officer. See id.
As Bentley’s counsel conceded, all of this information was
properly before the jury in some other form. See Oral Arg.
Recording at 9:50. The drugs themselves were properly
3
“PWID” is an acronym for “possession with intent to distribute.”
10
admitted. The officer who filled in the labels testified at trial
about every piece of information of consequence that they
contained. His testimony, and that of the other searching
officers, provided substantially more detail than did the
shorthand notes on the PD 95s. And Bentley’s own driver’s
license listed his address as 901 Hamilton Street.
Because the labels were merely cumulative of properly
admitted evidence, even if they constituted hearsay, their
inadvertent delivery to the jury was harmless. See Treadwell,
760 F.2d at 339-40 & n.20; see also United States v. Clarke, 24
F.3d 257, 267 (D.C. Cir. 1994); United States v. DeLoach, 654
F.2d 763, 771 (D.C. Cir. 1980). In Treadwell, for example, we
found harmless error where a one-page document, which “did
nothing more than restate in an abbreviated form the testimony”
of a government witness, had been inadvertently sent to the jury
room. 760 F.2d at 339-40; cf. Gurr, 471 F.3d at 152-153 & n.3
(holding that, even if hearsay, the admission of a report “was
harmless because the preparer . . . testified [about the report] and
[was] subject to cross-examination at trial”). Bentley contends
that, even if the labels were cumulative, they were nonetheless
prejudicial because they provided a “‘neat condensation’ of the
government’s theories.” Appellant’s Br. 23 (citing United States
v. Adams, 385 F.2d 548 (2d Cir. 1967), and United States v.
Ware, 247 F.2d 698 (7th Cir. 1957)). But the testimony of the
officer who filled in the labels made clear that he did so merely
to preserve the chain of custody of their contents. The jury was
therefore aware that the labels served only an administrative
function, rather than as an expression of the government’s
theory of the defendants’ liability.4 Indeed, although the bulk of
4
Cf. Treadwell, 760 F.2d at 340 (distinguishing Adams and Ware
on related grounds). For the same reason, we reject the defendant’s
contention that the labels independently suggested that Bentley was
the target of the investigation that provided the basis for the search
11
the government’s closing argument was devoted to a detailed
review of the evidence linking Bentley to 901 Hamilton Street
and the items found inside, it did not mention the PD 95s.
Bentley further contends that the labels were prejudicial
because they listed only his name, and not that of co-defendant
Coates, and that they therefore associated the drugs with him
rather than her. Bentley claims that this is why the jury
convicted him while acquitting Coates. We agree with the
district court that this argument is unpersuasive. Throughout the
trial, the government argued that Bentley and Coates jointly
possessed the drugs. See, e.g., Trial Tr. 44-45 (Jan. 29, 2004)
(closing argument). As the district court explained, “[t]he
government’s theory of this case did not require or suggest that
the jury choose between the two co-defendants.” Bentley, No.
03-0388-01, slip op. at 7. The more plausible explanation for
the jury’s verdicts is simply that the government’s case against
Bentley was stronger: he was found in the doorway to the
bedroom containing the contraband; his driver’s license listed
901 Hamilton Street as his address; and the key to the safe
containing the cocaine base was on the same ring as the keys to
the car that an officer had seen him driving. By contrast, Coates
was in another part of the house at the time of the search; her
driver’s license did not list 901 Hamilton Street; and she had
never been seen driving the car.
Because the police labels were cumulative of properly
admitted evidence and did not otherwise prejudice Bentley, we
conclude that they -- like the $5,446 in cash -- did not have a
“substantial and injurious effect or influence in determining the
jury’s verdict.” Kotteakos, 328 U.S. at 776.
warrant.
12
IV
For the foregoing reasons, the judgment of the district court
is
Affirmed.