1 NOT PRECEDENTIAL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 DISTRI CT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ( Crim . Action No

. 2

- 10

- cr - 00 172

- 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 of2

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 evide nce. 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 esse ntial 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 i dentified Benjamin as his drug supplier. The State Police contacted the Drug Enforcement
A dministration (“DEA”), which commenced an investigation. As part of the federal investigation, agents recorded various telephone calls between Newton and Benjamin . Additionally, Newton w ore a body recording device and transmitter during several face

- to

- face meetings with Benjamin and another individual named Wade. D uring these meetings, drugs and /or money were exchanged. Benjamin was arrested and eventually trie d before a jury. At trial, several audio recordings were p layed for the jury by both the G overnment and defense couns el. During the charge conference, counsel for the G overnment noted that “[f]or3

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 ob jected, arguing that the case was closed. The District Judge denied the G overnment’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 re cordings to be played for the jury’s consideration during deliberations.
I I. Analysis 1 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 Distric t 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 Co urt 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)

.4

Gibson since that case differed factual ly from the instant matter

. Benjamin further suggests that the District Court should have reopened the c ase 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 , w hile admitting its own error in failing to seek the admission of the au dio 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

wa s 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. Howeve r, a fter 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

. T he District Court did no t abuse it discretion in doing s o. “ 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, and5

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 adm ission 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 un due burden , to either side based on the admission of the recordings

. Further, defense counsel provided no substantive objection to their admission. Under the se circumstances, we find the District Court did not abuse its discretion in reopening the record to admit the audio recordings. III. Conclusion
T he 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 c onviction.