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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-1094

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UNITED STATES OF AMERICA

v.

LLOYD BENJAMIN,

 Appellant

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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

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Submitted Under Third Circuit LAR 34.1(a)

October 24, 2012

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

(Opinion Filed: January 31, 2013)

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OPINION

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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 

 

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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 
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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.