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

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).

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,
9

3

“PWID” is an acronym for “possession with intent to distribute.”

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
10

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

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
11

warrant.

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. 
12

IV

For the foregoing reasons, the judgment of the district court

is

Affirmed.