United States v. Juan Jarmon ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 19-1652
____________
UNITED STATES OF AMERICA
v.
JUAN JARMON a/k/a J, a/k/a YIZZO,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-17-cr-00072-001)
District Judge: Honorable Paul S. Diamond
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
August 27, 2021
____________
No. 20-1315
____________
UNITED STATES OF AMERICA
v.
EDWARD STINSON, a/k/a E-Black,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-17-cr-00071-001)
District Judge: Honorable Paul S. Diamond
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
August 27, 2021
Before: HARDIMAN, ROTH, Circuit Judges, and
PRATTER, District Judge. *
(Filed: September 15, 2021)
Maureen C. Coggins
509 Swede Street
Norristown, PA 19401
Attorney for Appellant Juan Jarmon
Paul J. Hetznecker
Suite 911
1420 Walnut Street
Philadelphia, PA 19102
Attorney for Appellant Edward Stinson
*
The Honorable Gene E.K. Pratter, United States District
Judge for the Eastern District of Pennsylvania, sitting by
designation.
2
Jennifer Arbittier Williams, Acting United States Attorney
Robert A. Zauzmer
Jerome M. Maiatico
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee the United States of America
in Appeal No. 19-1652
William M. McSwain, United States Attorney
Robert A. Zauzmer
Emily McKillip
Josh A. Davison
Joseph T. Labrum, III
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee the United States of America
in Appeal No. 20-1315
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Edward Stinson and Juan Jarmon were tried, convicted,
and sentenced to 30 years’ imprisonment for selling large
amounts of crack cocaine in a public housing complex. In this
appeal, they challenge evidentiary decisions, the jury verdicts,
and their sentences. We will affirm.
3
I
Stinson and Jarmon each ran drug trafficking
conspiracies out of the Norman Blumberg Public Housing
Complex in North Philadelphia at various times between 2010
and 2015. The Blumberg Complex included some 500
apartment units in what was intended to be a family-friendly
environment that included two playgrounds. Unfortunately,
that aspiration was not realized as the large quantity of drugs
sold in the Blumberg Complex spurred a joint investigation
among local police, the Federal Bureau of Investigation, and
the United States Drug Enforcement Administration.
Government agents put up pole cameras, established
wiretaps, used confidential informants to make controlled drug
purchases, pulled trash, analyzed pen registers, and—after
Stinson’s arrest and subsequent incarceration in 2012—
listened to recordings of Stinson’s phone conversations while
he was in prison. After authorities completed their
investigation in February 2017, the grand jury returned two
indictments. The first charged Stinson and twelve others with
conspiracy to distribute 280 grams or more of crack cocaine
and related crimes. The second charged Jarmon and twelve
others with similar crimes. 1 Most of their co-defendants
pleaded guilty, but Stinson and Jarmon proceeded to separate
trials.
The trials shared a similar structure. In each, the
Government called some law enforcement officers to testify
1
Stinson was charged in both indictments, but the Government
moved to dismiss all charges against him under the second
indictment after his conviction under the first.
4
about the investigation. These officers gave general overview
testimony, explained coded language and investigative
techniques, and discussed recorded phone calls they reviewed
as part of the investigation. In one recorded call—made by
Stinson while in prison—Stinson ceded some of his drug
territory to Jarmon.
The Government also called cooperating co-defendants
who testified against Stinson and Jarmon. These witnesses
explained the ins and outs of drug dealing at Blumberg. Stinson
and Jarmon led their conspiracies. Each had his own group of
sellers and lookouts with set wages and schedules. They used
the Blumberg Complex apartments as stash houses and from
there sold crack at all hours of the day.
Juries convicted Stinson and Jarmon of the conspiracy
charges and most of the related charges. The District Court
sentenced each to 360 months’ imprisonment.
II
The District Court had jurisdiction under 18 U.S.C.
§ 3231, and we exercise appellate jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742. Stinson and Jarmon prematurely
filed notices of appeal, which we deem timely under Rule
4(b)(2) of the Federal Rules of Appellate Procedure.
Although Stinson and Jarmon were charged in different
indictments based on different underlying facts, their appeals
were consolidated because they raise a common issue: whether
recordings of phone calls Stinson made from prison were
admissible at trial. We consider this issue first, and then turn to
their separate arguments.
5
III
Before trial, Stinson moved to suppress recordings of
phone calls he made while incarcerated. Because one of these
calls was with Jarmon, Jarmon joined the motion. The District
Court denied the motion, relying on our opinion in United
States v. Shavers, where we held inmates and their
interlocutors have no reasonable expectation of privacy in
phone conversations if they have reason to know the calls are
monitored. 693 F.3d 363, 390 & n.7 (3d Cir. 2012), vacated on
other grounds, Shavers v. United States, 570 U.S. 913 (2013).
We review the denial of a motion to suppress under a mixed
standard: clear error for factual findings and de novo for issues
of law. United States v. Perez, 280 F.3d 318, 336 (3d Cir.
2002).
Under Shavers, the motion to suppress had to be denied.
Upon entering the prison, Stinson received a prisoner
handbook which explained the facility’s policies, including
that calls are monitored and recorded. This warning is repeated
on signs near the facility’s telephones and in a recorded
message played to both parties before every call. Neither
Stinson nor Jarmon claim ignorance; they knew the calls were
monitored and recorded. But they argue Shavers is no longer
good law and that their calls were protected by the Fourth
Amendment despite their knowledge of the recordings.
The Fourth Amendment protects information in which
one has a “reasonable expectation of privacy.” Shavers, 693
F.3d at 389 (quoting New York v. Class, 475 U.S. 106, 112
(1986)). This requires the defendant to subjectively believe the
information is private and for that belief to be objectively
reasonable. Smith v. Maryland, 442 U.S. 735, 740 (1979).
6
Until 2018, it was accepted that one could not have a
reasonable expectation of privacy in information voluntarily
turned over to third parties. See id. at 743–44. The Supreme
Court altered this “third-party doctrine” in Carpenter v. United
States, when it held a defendant’s cell-site location information
(CSLI)—data tracking a cell phone’s physical location that is
automatically sent by the phone to the cell carrier whenever the
phone is used—is protected by the Fourth Amendment. 138 S.
Ct. 2206, 2217 (2018).
The Court recognized CSLI is different. Unlike
ordinary business records, the collection of CSLI by cell
carriers is “inescapable and automatic” once one decides to
carry a cell phone. Id. at 2223. The rare combination of
automated disclosure and “deeply revealing” location
information prompted the Court to conclude that cell phone
users have a reasonable expectation of privacy in CSLI even
when it was held by a private third party (a cell phone
company). Id. at 2223. Stinson and Jarmon ask us to apply
Carpenter to prison calls.
We decline Stinson and Jarmon’s invitation to expand
Carpenter for two reasons. First, Shavers did not rely on the
third-party doctrine, so its holding is unaffected by Carpenter.
Shavers held inmates have no expectation of privacy in their
phone calls not because the recordings are held by a third party,
but because of the nature of incarceration. 693 F.3d at 390 n.7.
Prisoners know they are under constant surveillance. They
have no general expectation of privacy during their
incarceration, including in their own cells. Hudson v. Palmer,
468 U.S. 517, 525–26 (1984). And the prison’s phone policies
and warnings to inmates make any subjective expectation of
privacy even more unreasonable. See Shavers, 693 F.3d at 390
n.7. That principle applies to both parties on the line. Id. at
7
389–90. A party at liberty (Jarmon) cannot reasonably expect
his call to be private when he is told that his conversation with
an inmate (Stinson) is being monitored. Id.
Even had Shavers relied on the third-party doctrine,
Carpenter still would not compel a different result. While we
need not decide how far Carpenter extends to other
technologies, it does not apply to prison phone calls. Unlike an
ordinary cell phone user who “in no meaningful
sense . . . ‘assume[s] the risk’ of turning over a comprehensive
dossier of his physical movements” when he turns on his
phone, Carpenter, 138 S. Ct. 2220 (quoting Smith, 442 U.S. at
745), Stinson and Jarmon did assume the risk of surveillance
here. After being told their calls were monitored, they
continued to discuss drug trafficking and other criminal acts.
And unlike CSLI, there is nothing “unique” or technologically
advanced about prison phone calls that counsels for extending
the Fourth Amendment to that milieu. Id.For these reasons, we hold that Stinson and Jarmon had
no reasonable expectation of privacy in their phone calls. We
will therefore affirm the District Court’s orders denying their
motion to suppress.
IV
Having rejected Appellants’ request to expand
Carpenter to prison phone calls, we turn to Stinson’s and
Jarmon’s particular arguments.
A
Stinson argues the District Court abused its discretion
in admitting some testimony by FBI Agent Sarah Cardone, the
8
Government’s overview witness. See United States v. Pelullo,
964 F.2d 193, 199 (3d Cir. 1992). He acknowledges overview
witnesses may “tell the story of [the] investigation” including
“how the investigation began, who was involved, and what
techniques were used.” United States v. Lacerda, 958 F.3d 196,
208 (3d Cir. 2020). But Stinson claims Agent Cardone went
too far when she referred to the “Stinson drug trafficking
group,” Stinson App. 475, told jurors she “learned about the
trafficking of crack cocaine by Edward Stinson and . . . other
members of this organization,” Stinson App. 472, and
described a chart prepared by the prosecution showing the
Government’s theory of how Stinson’s group was organized.
We perceive no problem with Agent Cardone’s testimony.
It “was limited to an account of her investigation, her personal
observations, and her beliefs of what the evidence showed
based on what she saw and heard and did.” Larcerda, 958 F.3d
at 210 (cleaned up). Besides, the District Court’s limiting
instructions throughout Agent Cardone’s testimony would
have cured any error. As for the chart, such exhibits are
allowed when the jury is properly instructed and the chart is
supported by actual evidence, as was the case here. See United
States v. Velasquez, 304 F.3d 237, 240 (3d Cir. 2002).
B
Stinson and Jarmon separately argue the evidence at
their trials was insufficient to convict them of conspiracy.
Although they cite different evidence, the crux of their
arguments is the same: the Government proved only the
existence of mini-conspiracies to sell small quantities of crack,
not overarching conspiracies to sell 280 grams or more. These
arguments fail because they do not accept the evidence in the
light most favorable to the jury verdict. See United States v.
9
Mike, 655 F.3d 167, 174 (3d Cir. 2011). Under that standard,
there was plenty of evidence for a rational trier of fact to find
proof beyond a reasonable doubt that Stinson and Jarmon
orchestrated multi-year conspiracies that trafficked more than
280 grams of crack. See id.For starters, Appellants recruited people in their
communities to sell as much crack as possible. These were not
just buyer-seller relationships. Stinson and Jarmon bought
crack in bulk to distribute to their sellers who acted as
employees, not customers. They set schedules and shifts and
paid regular wages to their subordinates. And co-conspirators
warned each other about police activity in the Blumberg
Complex. See United States v. Perez, 280 F.3d 318, 345–47
(3d Cir. 2002) (finding “interdependency” between co-
conspirators defeated the claim of multiple conspiracies). The
record shows that Stinson and Jarmon were not merely part of
large, ongoing criminal enterprises, but that they organized
them. See id. at 347.
Stinson focuses heavily on the fact that some members
of his conspiracy joined at different times while others left and
returned later. Such behavior is common, which is why this
Court held long ago that the government “may establish the
existence of a continuing core conspiracy which attracts
different members at different times and which involves
different sub-groups committing acts in furtherance of the
overall plan.” United States v. Boyd, 595 F.2d 120, 123 (3d Cir.
1978). That one of Stinson’s co-conspirators went to South
Carolina for six months, or that Stinson and another co-
conspirator feuded for short periods of time, did not preclude
the Government from showing Stinson’s participation in a
single, overarching conspiracy.
10
The evidence also showed that Stinson’s conspiracy and
Jarmon’s conspiracy each distributed 280 grams or more of
crack. Besides the argument we just rejected, Stinson and
Jarmon challenge the total amount of crack sold. The District
Court addressed these arguments in its order denying
Appellants’ motions for judgments of acquittal and provided
an estimate of crack quantities proven by the Government. And
the trial judge’s conservative calculations still exceeded 280
grams.
Stinson claims the District Court erroneously counted
the same 21 grams of crack three times. We find no record
support for this claim, but even if we did, the extra 42 grams
would be unavailing for Stinson because the evidence at trial
proved his conspiracy sold far more crack than the District
Court gave it credit for. One of Stinson’s co-conspirators
mentioned five rocks of crack cocaine the District Court did
not include in its calculations. Another said he sold crack for
Stinson over 20 times, but the District Court considered only
sales from his four highest grossing days. These uncounted
quantities exceed the challenged 42 grams.
Jarmon’s arguments on this score are even less
convincing. One of Jarmon’s sellers said he alone sold more
than 280 grams of crack while working for Jarmon. This
testimony sufficed to establish the requisite drug quantities.
Jarmon also attacks the credibility of Government witnesses
and questions the chain of custody for the seized drugs. But
these arguments too are unpersuasive. It was the jury’s
prerogative to assess the credibility of the Government’s
witnesses. And the testimony by the DEA agents and chemists
handling the drugs adequately authenticated the physical
evidence. See United States v. Rawlins, 606 F.3d 73, 82 (3d
Cir. 2010).
11
For these reasons, we hold the District Court did not
clearly err in attributing more than 280 grams of crack to
Stinson and Jarmon at sentencing. See United States v. Grier,
475 F.3d 556, 570 (3d Cir. 2007) (en banc). Although
sentences must be based on drug quantities reasonably
foreseeable to each individual, USSG § 1B1.3(a)(1)(B)(iii), as
ringleaders, Stinson and Jarmon are responsible for all the
crack sold by their subordinates to further the conspiracies, see
United States v. Gibbs, 190 F.3d 188, 219 (3d Cir. 1999). And
that amount exceeds 280 grams for both Stinson and Jarmon.
C
Jarmon claims the evidence was insufficient to convict
him of several substantive drug offenses charged in counts 7–
18 and 24–33. Counts 7–18 were based on controlled
purchases of crack directly from Jarmon. He claims the
evidence was insufficient because the Government cooperators
who made the purchases were unreliable, the Government lost
some of the seized drugs, and the chain of custody was spotty
at times. While these arguments reduce the probative value of
the Government’s evidence, the videos, photos, and audio
recordings of Jarmon participating in these sales were enough
for a jury to find him guilty beyond a reasonable doubt.
Counts 24–33, which deal with aiding and abetting drug
sales, were based on intercepted calls in which Jarmon directed
customers to his sellers to buy crack. These calls and the
witness testimony explaining them were sufficient evidence for
the jury to convict. And the slight discrepancy between when
the calls occurred and the time charged in the indictment (less
than an hour) amounts to, at most, a non-prejudicial variance.
See Real v. Shannon, 600 F.3d 302, 308 (3d Cir. 2010) (“Where
‘on or about’ language is used, the government is not required
12
to prove the exact dates, if a date reasonably near is
established.” (quoting United States v. Nersesian, 824 F.2d
1294, 1323 (2d Cir. 1987))).
D
Finally, Stinson and Jarmon dispute some aspects of
their sentences. Both challenge a leadership enhancement.
Jarmon alone challenges a violence enhancement, an
enhancement for possessing a dangerous weapon, and the
reasonableness of his sentence for the substantive drug
charges.
The District Court did not clearly err in applying any of
the sentencing enhancements. See United States v. Helbling,
209 F.3d 226, 242–43 (3d Cir. 2000). Testimony by Stinson
and Jarmon’s co-conspirators identified them as “the boss” of
their respective conspiracies. Stinson and Jarmon bought crack
in bulk, hired and controlled their workers, and kept the lion’s
shares of the drug proceeds. So we agree with the District Court
that Stinson and Jarmon were the leaders of their groups. See
id. at 243 (citing USSG § 3B1.1 app. note 3 (listing factors
showing leadership including degree of control, scope of
illegal activity, and claiming the larger share proceeds)). And
the conspiracies were “extensive” for purposes of the
leadership enhancement; evidence at trial showed each
conspiracy had at least five members. See USSG § 3B1.1(a).
As for Jarmon’s violence and weapon enhancements,
his own words are the strongest evidence against him. The
Government introduced an intercepted call where Jarmon
bragged about punching a female Blumberg resident in the face
when she threatened to call the police. In another call, he
admitted to having a gun, which he gave to a co-conspirator,
13
and said he had to get another one. So his argument against the
violence and weapon enhancements is specious at best.
Nor do we find Jarmon’s 360-month sentence
unreasonable. The District Court properly grouped Jarmon’s
conspiracy count with his substantive drug offenses and
sentenced him at the bottom of the Guidelines range. See
USSG § 3D1.2(d). Such sentences are presumptively
reasonable, United States v. Pawlowski, 967 F.3d 327, 331 (3d
Cir. 2020), and given the scope of Jarmon’s crimes and his past
criminal history, that presumption is not rebutted here.
* * *
Our review of the extensive District Court records in
these cases leads us to conclude that the District Court
committed no errors. Because the Supreme Court’s decision in
Carpenter cannot reasonably be extended to prison recordings,
the District Court properly denied the motion to suppress. The
Court afforded Stinson and Jarmon fair trials, the Government
carried its burden of proof on the counts of conviction, and the
sentences were reasonable. Accordingly, we will affirm.
14