United States of America v. JUAN JARMON a/k/a J, a/k/a YIZZO United States of America v. EDWARD STINSON, a/k/a E-Black

Philadelphia, PA - Criminal defense lawyer represented defendants with selling large

amounts of crack cocaine in a public housing complex charge.

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.

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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.

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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.

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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).

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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

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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

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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.

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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 coconspirators 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 coconspirator feuded for short periods of time, did not preclude

the Government from showing Stinson's participation in a

single, overarching conspiracy.

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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).

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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

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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,

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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.