U.S. v. JADLOWE

ould be simply — they can talk about the weather or the Red Sox. They should not be talking about the case.

The court concluded the colloquy as follows:

I disagree, and I think that's the reason states, at least those who have a progressive view of jury service, have abolished that rule now. In fact, even as to ultimate opinions as to the case, which I restrict them from talking about. I think you will find that the modern trend is against the old-fashion rule.

The court's instruction was unmistakably erroneous, including the assumption that the "modern trend" in criminal cases is to allow juror discussion. For more than a century, it has been a common-law principle that "it is improper for jurors to discuss a case prior to its submission to them," a practice that safeguards a defendant's "entitle[ment] under the Fifth and Sixth Amendments to the Constitution to a fair trial to an impartial jury." Winebrenner v. United States, 147 F.2d 322, 329, 327 (8th Cir. 1945); id. at 329 ("So general is the rule that jurors should not discuss a case prior to its submission to them, that it has been enacted into statute in practically all the states of the Union."). While jury innovations in some jurisdictions now include allowing jurors to discuss evidence among themselves throughout the trial, see, e.g., Ariz. R. Civ. P. 39(f), such developments have arisen primarily in the context of civil cases, and even in that setting such discussions have "remain[ed] controversial." Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 909 N.E.2d 523, 528 529 n. 17 (2009) ("While the parties in a civil case may consent to juror discussions during the trial, we would not approve of that practice in a criminal case."); see also, e.g., Valerie P. Hans Neil Vidmar, The Verdict on Juries, 91 Judicature 226, 229 (2008) (noting that allowing jury discussions during trial remains one of the "more controversial" jury reforms); Juror Discussions During Civil Trials, 45 Ariz. L. Rev. at 77 ("Ultimately, like many other proposals for change, the innovation permitting jurors to discuss the case during trial has both desirable and undesirable features.").

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).

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).

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/SOSCompendium Final.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.

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/may 1999.htm.

At least for now, the prevailing view in the federal courts remains that it is improper for jurors to discuss the case other than during their formal deliberations. In December 2009, the Judicial Conference Committee on Court Administration and Case Management reaffirmed the general no-discussion rule in its proposed model jury instruction on the use of electronic technology. See Judicial Conference of the United States, Comm. on Court Admin. Case Mgmt., Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct Research on or Communicate about a Case (Dec. 2009), available at www.uscourts.gov/News/Viewer.aspx?doc=/ uscourts/News/2010/docs/DIR10-018.pdf (proposing that courts tell jurors in pretrial instructions that, "[u]ntil you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors"). Our circuit's pattern instruction is to the same effect: " First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict." Pattern Criminal Jury Instructions for the District Courts of the First Circuit § 1.07 (1997), available at www.med.uscourts.gov/practices/crpji.97nov.pdf. Case law from other circuits, including recent decisions, reveals similar disapproval of discussions by jurors about the case before formal deliberations begin. See, e.g., United States v. Carey, 337 Fed.Appx. 256, 260 (3d Cir. 2009) (noting that "[t]he evidence of premature jury deliberation revealed a departure from the preferred process," where some jurors reported hearing other jurors discussing the case); United States v. Cox, 324 F.3d 77, 86 (2d Cir. 2003) (" `It is a generally accepted principle of trial administration that jurors must not engage in discussions of a case before they have heard both the evidence and the court's legal instructions and have begun formally deliberating as a collective body.'" (quoting United States v. Resko, 3 F.3d 684, 688 (3d Cir. 1993)); United States v. Dominguez, 226 F.3d 1235, 1248 n. 13 (11th Cir. 2000) (describing predeliberation jury discussions as a "violation of the proper process for jury decisionmaking"); Winebrenner, 147 F.2d at 328-29; see also Jury Selection Strategy § 39:3 ("The rule as enunciated in Winebrenner has remained the standard in most courts in the United States. . . .").

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).

The traditional view that jury discussion of the case during the trial is improper arises from concerns that jurors will prematurely form judgments that will be difficult to dislodge later in the proceedings. See Resko, 3 F.3d at 689; Winebrenner, 147 F.2d at 328-29. The court in Resko cogently summarized these concerns in a criminal case:

First, since the prosecution presents its evidence first, any premature discussions are likely to occur before the defendant has a chance to present all of his or her evidence, and it is likely that any initial opinions formed by the jurors, which will likely influence other jurors, will be unfavorable to the defendant for this reason. Second, once a juror expresses his or her views in the presence of other jurors, he or she is likely to continue to adhere to that opinion and to pay greater attention to evidence presented that comports with that opinion. Consequently, the mere act of openly expressing his or her views may tend to cause the juror to approach the case with less than a fully open mind and to adhere to the publicly expressed view-point.

Third, the jury system is meant to involve decisionmaking as a collective, deliberative process and premature discussions among individual jurors may thwart that goal. Fourth, because the court provides the jury with legal instructions only after all the evidence has been presented, jurors who engage in premature deliberations do so without the benefit of the court's instructions on the reasonable doubt standard. Fifth, if premature deliberations occur before the defendant has had an opportunity to present all of his or her evidence . . . and jurors form premature conclusions about the case, the burden of proof will have been, in effect, shifted from the government to the defendant, who has "the burden of changing by evidence the opinion thus formed." [ Winebrenner, 147 F.2d] at 328.

Finally, requiring the jury to refrain from prematurely discussing the case with fellow jurors in a criminal case helps protect a defendant's Sixth Amendment right to a fair trial as well as his or her due process right to place the burden on the government to prove its case beyond a reasonable doubt.

3 F.3d at 689-90 (citations omitted).

To be sure, not all of these reasons have force when the jurors are expressly told — as they are, for example, in Arizona — that they may discuss the evidence only in the presence of all jurors and that they must "reserve judgment about the outcome of the case until deliberations commence." Ariz. R. Civ. P. 39(f). (Essentially, that is what the trial court told the jurors here.) Yet, impressions formed about the evidence early on may nonetheless have a significant impact on the verdict, even if the jurors do not make their ultimate judgment until the end of the case. In our view, the traditional rationales remain persuasive.

Of course, not all premature jury discussion about a case will compromise a defendant's fair trial rights, particularly where the conversation does not reflect a point of view about the evidence or the outcome. See, e.g., United States v. Diaz, 597 F.3d 56, 63 (1st Cir. 2010) (noting that jurors apparently discussed only "a legal principle" and not "the merits of the case against the defendant"). Discussion such as that endorsed by the court in this case, however — about "interesting things witnesses say, significant pieces of evidence" — is inappropriate, even if the conversation was not what we ordinarily would consider premature "deliberations." Cf. State v. Washington, 182 Conn. 419, 438 A.2d 1144, 1148 (1980) (noting that "[d]iscussion is an integral part of deliberations" and that, "[i]n a constitutional sense, the distinction between discussion and deliberation is more apparent than real"). Moreover, while jury discussion that does not involve expressions of ultimate opinions may be found harmless in retrospect, it is a different question whether district courts may give the jury permission at the outset of the trial to talk about the case before formal deliberations begin. We now hold expressly that they may not. We thus conclude that the court erred by giving the jurors permission to discuss significant aspects of the case as the trial progressed.

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.

B. Does the Error Require a New Trial?

1. Was the Instruction Structural Error?

Jadlowe argues that the court's instruction resulted in the denial of his due process rights and his right to a fair trial, and that it should be considered structural error requiring reversal without a showing of prejudice. See, e.g., United States v. Marcus, ___ U.S. ___, 130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010) (describing structural errors as "a very limited class of errors that affect the framework within which the trial proceeds" (citations omitted) (internal quotation marks omitted); Neder, 527 U.S. at 8, 119 S.Ct. 1827. He further contends that, even if the error is not deemed structural, a new trial is necessary because the government is unable to prove the absence of prejudice from the instruction. See Neder, 527 U.S. at 7, 119 S.Ct. 1827 (noting that most constitutional errors may be disregarded where they are "harmless `beyond a reasonable doubt'" (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)); United States v. Carpenter, 403 F.3d 9, 11-12 (1st Cir. 2005).

The question in identifying structural error is whether the error affects the "`framework'" of the trial, "`rather than simply . . . the trial process itself.'" Neder, 527 U.S. at 8, 119 S.Ct. 1827 (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). In such instances, "it is often `difficul[t]' to `asses[s] the effect of the error,'" Marcus, 130 S.Ct. at 2165 (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n. 4, 126 -S.Ct. 2557, 165 L.Ed.2d 409 (2006)), because the nature of a structural error is to "produce[] `consequences that are necessarily unquantifiable and indeterminate,'" Neder, 527 U.S. at 11, 119 S.Ct. 1827 (quoting Sullivan v. Louisiana, 508 U.S. 275, 282, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993)). The frequently cited examples of such errors include the complete denial of counsel, a biased presiding judge, the denial of a public trial, and a defective instruction on reasonable doubt. Id. at 8, 119 S.Ct. 1827; see also, e.g., United States v. Curbelo, 343 F.3d 273, 281 (4th Cir. 2003) (concluding that trial court's decision to proceed with an eleven-person jury, over defendant's objection, was structural error requiring reversal).

In the Supreme Court cases finding structural error, the errors themselves effected a deprivation of rights, so that "[n]o additional showing of prejudice is required to make the violation `complete.'" Gonzalez-Lopez, 548 U.S. at 146, 126 S.Ct. 2557. The Court explained that characteristic of structural error in Gonzalez-Lopez, where it contrasted denial of a criminal defendant's choice of counsel — which it held to be structural error — with denial of the Sixth Amendment right to effective representation of counsel — which requires an additional showing of prejudice. Id. at 147-18, 126 S.Ct. 2557. Deprivation of the right of choice is "`complete,'" the Court explained, "when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received." Id. at 148, 126 S.Ct. 2557. By contrast, violation of "the right to effective counsel" depends on the competence of "whatever lawyer is chosen or appointed." Id.

The type of error at issue here has "framework" implications. If the court's faulty instruction results in early discussion of the evidence or witnesses by the jurors, their later deliberations may be prejudiced in ways that would be difficult to identify or quantify. The jury's deliberative process — the collective, objective review of the evidence of record, evaluated as a whole, and guided by the court's closing instructions — may be compromised as a result of prematurely formed impressions. That potential harm is unlike the erroneous introduction of a piece of evidence or a flawed instruction that misstates or omits an element of the crime. Such errors are discrete trial events whose effect on the outcome of the trial may be evaluated in light of the properly admitted evidence or the instruction as a whole. By contrast, premature discussion raises the possibility that the jurors will view all of the evidence through a distorted lens, much like what occurs when the jury is improperly instructed on reasonable doubt. See Neder, 527 U.S. at 10-11, 119 S.Ct. 1827 (noting that a flawed reasonable doubt instruction is "not subject to harmless-error analysis because it Vitiates all the jury's findings'" (quoting Sullivan, 508 U.S. at 281, 113 S.Ct. 2078)). Where the possibility exists that premature jury discussions shifted to the defendant "the burden of changing by evidence the opinion thus formed," Winebrenner, 147 F.2d at 328, the possibility exists that the trial was "an unreliable vehicle for determining guilt or innocence," Neder, 527 U.S. at 9, 119 S.Ct. 1827.

Yet, the error here differs in a significant way from those the Supreme Court has labeled structural. Although the instruction opens the door to discussion "taint[ing] the process by which guilt [is] determined," Curbelo, 343 F.3d at 285, the defendant will not necessarily be denied a fair trial as a result of the error. Despite the instruction, juror discussion may not take place at all, and even if some preliminary conversation about the case occurs, it may be tangential to the jurors' determination of guilt or innocence. Unlike the complete denial of counsel or a public trial, for example, the harm triggered by the flawed instruction does not occur — i.e., the constitutional violation is not "complete" — until prejudicial discussion occurs. It is not necessarily the case, therefore, that " all or almost all such errors always `affec[t] the framework within which the trial proceeds,' or `necessarily render a criminal trial fundamentally unfair.'" Marcus, 130 S.Ct. at 2166 (quoting Fulminante, 499 U.S. at 310, 111 S.Ct. 1246, and Neder, 527 U.S. at 9, 119 S.Ct. 1827).

Jadlowe contends that the error must nonetheless be considered structural because a defendant would never be able to probe the jury's deliberations to prove prejudice. Inquiries into jury deliberations are, in fact, narrowly restricted by Federal Rule of Evidence 606(b), which bars juror testimony "as to any matter or statement occurring during the course of the jury's deliberations." The relevant inquiry, however, is not into the nature of the formal deliberations that occurred once the presentation of evidence concluded, but the nature of any juror discussion about the case prior to the formal deliberations. Probing such premature discussions is neither impermissible nor impossible. Indeed, courts routinely examine allegations of juror misconduct involving improper external influences and communications among jurors, and we see no relevant distinction between those contexts and this one. The threshold question would be whether any premature discussion took place. If so, was it among all jurors or just a few? Did discussion occur regularly through the proceedings, or only once — and at what point? What was the content of the discussion?

We thus conclude that Supreme Court precedent "insist[s] upon a showing of individual prejudice" when a court improperly instructs jurors in a criminal case that they may discuss the evidence before formal deliberations commence. Marcus, 130 S.Ct. at 2166. Indeed, although the practice remains rare, the authorization of jury discussion in criminal cases by some courts and the Arizona Supreme Court Committee's recommendation that it be permitted in both civil and criminal trials reinforce our conclusion that the instruction here should not be classified as structural error requiring automatic reversal of the defendant's conviction. See supra nn. 25, 26 related text; cf. Resko, 3 F.3d at 695 ("[W]e are unwilling to assume the existence of prejudice because we are far less certain that premature deliberations will lead to prejudice in every, or nearly every, instance."); United States v. Cruz, 156 F.3d 22, 28 (1st Cir. 1998) (upholding as adequate remedy the dismissal of three jurors who were heard discussing the case during a recess).

2. Prejudice

When a defendant properly preserves an objection to a trial error, the government bears the burden of proving that the error was harmless. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Curbelo, 343 F.3d at 278; United States v. Coló n-Munoz, 192 F.3d 210, 222 (1st Cir. 1999). For most constitutional errors, the government must show that the error was harmless beyond a reasonable doubt, Chapman, 386 U.S. at 24, 87 S.Ct. 824, and for most non-constitutional errors, the government must show that the error "did not have a `substantial and injurious effect or influence in determining the jury's verdict,'" Curbelo, 343 F.3d at 278 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The choice of standard need not detain us because, on this record, the outcome is the same under either one.

Neither the defendant nor the government asked the court to question the jurors about whether they had discussed any aspect of the case during the five days of trial, and no inquiry consequently was made into the content of any conversations they may have had. Such an inquiry could have revealed that the jurors discussed only tangential matters, allowing the government to easily satisfy its burden to show an absence of prejudice from the court's erroneous instruction. In some cases, such an inquiry could produce evidence that would advance the defendant's claim of prejudicial error. Given the potential significance of the jurors' actual response to an instruction allowing them to converse about the trial as it unfolds, both the prosecutor and defense counsel would be well advised to request a jury inquiry whenever a court gives an instruction like the one challenged in this case.

Here, the record is silent on whether the jurors engaged in premature discussions of the case and, hence, we must resolve the issue of prejudice by examining the information that is available to us. Our starting point is the flawed instruction itself. The district court explicitly told the jurors, twice, "not to express an ultimate opinion about the outcome of the case," directing them to wait "until you begin deliberations and each have an opportunity to make your opinions known." Pursuant to well-established precedent, "Sve presume juries understand and follow the court's instructions.'" United States v. Gentles, 619 F.3d 75, 85 (1st Cir. 2010) (quoting United States v. Vázquez-Botet, 532 F.3d 37, 56 (1st Cir. 2008)). We thus presume that the jurors did not express opinions about Jadlowe's guilt or innocence.

The court, however, told the jurors they could discuss "idiosyncracies of the judge and the lawyers, interesting things witnesses say, significant pieces of evidence." Thus, in assessing the impact of the court's error, the question is whether we can say with assurance that, even if discussion of those matters occurred, the jury's deliberative process was not compromised. Our concern is whether the jurors were able to objectively evaluate the evidence as a whole when they engaged in formal deliberations, guided by the court's closing instructions. See Resko, 3 F.3d at 692 (focusing on the loss of "the jurors' impartiality" as the prejudice from an instruction allowing premature deliberations); Winebrenner, 147 F.2d at 327 ("Whether guilty or innocent, appellants were entitled under the Fifth and Sixth Amendments to the Constitution to a fair trial to an impartial jury."); id. at 330 (referring to the "right of the defendants to open minded deliberation") (Woodrough, J., dissenting).

We can easily discount the impact of any discussion about idiosyncrasies of the personnel. Such observations would have had little or no effect on the jurors' ability to dispassionately consider the evidence against Jadlowe in its entirety. We acknowledge, however, that the possible discussion of "significant pieces of evidence" or interesting testimony is more troubling. Such premature evidentiary deliberation could, in close cases, skew the final weighing of all the evidence. This is not, however, a close case. Video surveillance and audiotapes, bolstered by compelling circumstantial evidence, placed Jadlowe in the midst of a drug scheme that involved the temporary storage of ten kilograms of cocaine in his garage. Despite flaws in the way certain evidence was presented, the record leaves no doubt about Jadlowe's complicity in the drug conspiracy.

Thus, even if we assume that some jurors talked too soon about the inculpatory tendency of certain evidence, the force of the government's case as a whole meant that any comments made during the course of the proceedings almost certainly had no influence on the jurors' ultimate evaluation of Jadlowe's guilt or innocence. Inescapably, the possibility of taint to the jury process from conversations about particular evidence was diminished, if not entirely negated, by the overwhelming proof of guilt that confronted the jurors when they commenced formal deliberations. Because we are persuaded that the court's erroneous instruction was harmless beyond a reasonable doubt, Jadlowe is not entitled to a new trial on the basis of that error.

We emphasize that we consider the strength of the evidence in this context not to demonstrate that the evidence was sufficient to establish guilt beyond a reasonable doubt, but as part of our inquiry into whether premature discussion could have compromised the jury's deliberative process. Harm to the deliberative process could occur even in the face of powerful evidence of guilt. The jury process almost certainly would be tainted, for example, by an instruction allowing discussion of the ultimate issue of guilt before all of the evidence was presented, regardless of the strength of the government's case.

IV.

Jadlowe asserts that the district court erred in admitting four types of evidence at trial: (1) a summary chart of wire-tapped phone calls, (2) Agent Fallon's testimony identifying him on the surveillance video she recorded at 30 Arch Street on November 4, 2005, (3) Agent Simmons's testimony identifying Jadlowe's voice in wiretapped calls, and (4) transcripts of wiretapped conversations that identified Jadlowe as one of the speakers.

We review the district court's decisions to admit or exclude evidence for abuse of discretion. Diaz, 597 F.3d at 64.

A. The Summary Chart

Jadlowe argues that Government Exhibit 10, a six-column chart listing details for twenty-two of the intercepted phone calls, contained testimonial hearsay that should have been ruled inadmissible at trial. Specifically, he objects to the final column, on the chart, which identifies the other phone number involved in each of the listed wiretapped conversations. Eleven of the twenty-two calls were made to or from a number associated with the 1022 phone seized from Jadlowe. There is no dispute about the admissibility of the first five columns, which report, inter alia, the date and time of each call and which targeted phone number, Ferreira's or Gonsalves's, was involved. That information also was listed on a computerized printout labeled as Exhibit 9, which Jadlowe concedes was properly admitted.

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

The information in Column 6 did not appear in written form on any other document admitted into evidence, and Jadlowe correctly points out that there is no evidence in the record about the creation of Column 6. The government argues that Column 6 was admissible because the same information was contained in digital files that were part of Exhibit 8. Exhibit 8 is a compact disk ("CD") that contains the oral recordings of the twenty-two phone calls listed on Exhibit 10; according to the government, the Column 6 information for each call is appended to its oral recording on the CD. The testimony at trial indicated that the data on the CD was not accessible to the jurors, however, and the government at oral argument essentially confirmed that was so.

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.

Given the government's concession, we think there is force to the argument that Column 6 did not qualify as a summary of evidence already in the record. We nonetheless decline to probe other theories in support of its admission. Column 6 provided only one link between Jadlowe and the conspiracy by identifying the 1022 number as the other phone number in some of the intercepted calls. As we describe below in Section B, the audio and video surveillance produced much more direct evidence of Jadlowe's participation in the calls. Hence, any error in allowing the list into evidence was harmless.

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.

B. The Remaining Evidentiary Issues

Jadlowe's three remaining contentions all concern the ways in which he was identified at trial as the individual who made the arrangements with Gonsalves and Ferreira for the cocaine delivery at 30 Arch Street. Agent Fallon identified him in the surveillance videotape shown at trial by comparing a photograph of him to the video image. Agent Simmons identified a voice on the tapes of the wiretapped phone calls as Jadlowe's, even though he had never spoken with Jadlowe in person; the transcripts of the wiretapped conversations given to the jury reflected Simmons's identification of Jadlowe as one of the speakers.

Jadlowe argues that the visual and voice identifications constituted improper lay opinion testimony because neither officer's identification was based on prior personal experience with Jadlowe and "[t]he jury was perfectly capable of drawing its own independent conclusion[s] based on the evidence presented." United States v. Garcia-Ortiz, 528 F.3d 74, 80 (1st Cir. 2008); see also Fed.R.Evid. 701 (allowing lay opinion testimony if, inter alia, it is "rationally based on the perception of the witness" and "helpful to a clear understanding of the witness' testimony or the determination of a fact in issue"). He asserts that the district court also abused its discretion in allowing the government to provide the jury with transcripts that presented as fact that he was the speaker.

We agree that the officers' identifications should not have been allowed as lay opinion testimony because neither Fallon nor Simmons was in a better position than the jurors to make the identity judgments. Indeed, Fallon testified that she made the identification by comparing his image on the screen with a driver's license photo that was in evidence. We are at a loss to understand the government's argument that Fallon was better situated than the jurors simply because she was watching the events as they were occurring. At the time, she was looking at the same video image seen by the jurors at trial; the Registry of Motor Vehicle's photograph also was in evidence. In addition, although the government is correct that "identification of a telephone caller may be [established] by circumstantial evidence," United States v. DiMuro, 540 F.2d 503, 514 (1st Cir. 1976) (quotation marks and citation omitted) (alteration in original), the circumstantial evidence on which Simmons relied to infer that Jadlowe was the speaker in the wiretapped conversations — the content of the calls and the physical surveillance reports — also was available to the jury.

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.

Nonetheless, any error in allowing the officers' identifications or the related transcripts was unquestionably harmless. An abundance of circumstantial evidence pointed to Jadlowe as the individual whom Fallon saw clearing the garage at 30 Arch Street and whom Simmons heard in the phone conversations with Ferreira and Gonsalves.

In a phone conversation on October 8, for example, the caller whose voice Simmons identified as Jadlowe's reported to Gonsalves that he would be getting his hair braided and that he had been home all day on his birthday. Both items of information in the call were linked to Jadlowe. According to motor vehicle records, Jadlowe's birthday was the day before, October 7, and Simmons, who had seen Jadlowe multiple times before, testified that he saw Jadlowe with newly braided hair shortly after this conversation. In a call with Gonsalves on November 4, the speaker Simmons identified as Jadlowe was addressed as "Uncle Marc," and in another call the same day, just before 2 p.m., that speaker told Gonsalves that he was "[t]aking care of the garage" and that he was "[d]oin' it right now." According to Agent Fallon's testimony, it was at about that time that, with other officers' assistance, she identified Jadlowe as the individual she had seen moving items from the garage to the yard at 30 Arch Street.

Simmons's ability to identify Jadlowe in each instance in which Jadlowe was designated on the transcript as the speaker was supported by the agent's admissible testimony that he had listened to 25 to 50 calls involving the number associated with the phone seized from Jadlowe at 30 Arch Street on November 4, 2005, and that over time he was able to recognize the callers in those wiretapped conversations after "hearing the same voices every day." He testified that he had heard no one on that phone other than the speaker Gonsalves referred to as "Uncle Marc" in the November 4 call. Each of the calls attributed to Jadlowe was thus identified by Simmons as involving the same voice, including the other calls described above whose content was linked to Jadlowe.

Hence, even if it were improper for Simmons and Fallon to have offered their opinions that Jadlowe was the speaker in the wiretapped calls and the individual in the videotape, we are confident that any such error did not influence the verdict. This is equally true of the jury's exposure to the transcripts. Not only was there compelling circumstantial evidence that Jadlowe was properly identified as the speaker in the calls, but the district court also instructed the jurors at the time they received the transcripts that it was up to them "to make a determination as to whether the transcript is correct in its identification of Mr. Jadlowe as the speaker at the points at which he is so listed in the transcript." The court emphasized that "the transcript is only an aid," and that the jurors would "have to look to other evidence in the case to ensure yourself that that indeed is true." The court repeated that caution in its charge at the close of evidence, telling the jurors that if they "believe that the speaker has been wrongly identified, keep in mind that it is your understanding of the recording that matters."

On this record, there was no reversible error stemming from the challenged evidentiary rulings.

V.

Jadlowe has pressed serious concerns about the admission of evidence and the jury instructions, and on some of those issues we agree that the district court erred. On the record before us, however, we cannot agree that those errors require a new trial. The judgment of conviction is therefore affirmed.

So ordered.