United States v. Anthony Chadwell, 2015 U.S. App. LEXIS 14539

On August 26, 2012, Officer James Ward stopped a vehicle driven by Anthony Chadwell; Chadwell was arrested as a habitual traffic offender and placed in handcuffs.
After Chadwell was taken to jail, officers searched the vehicle and found two firearms (a loaded .25 with a round in the chamber between the front seats and an unloaded .22 in the glove box) and cocaine in a bottle on the driver’s floorboard. The events were video recorded.
Chadwell was indicted for possession of firearms while subject to a court order in violation of 18 U.S.C. § 922(g)(8). He stipulated to admission of the two firearms, ammunition, the certified protective order, and a 19-minute portion of the patrol-car video (the full recording was ~1 hour).
At trial the government played the 19-minute video in open court; the video exhibit (and a TV/player) were later sent into the jury room during deliberations over Chadwell’s defense counsel’s objection. The jury convicted.
At sentencing the district court applied a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) (firearm used or possessed in connection with another felony, i.e., drug trafficking) based on proximity of drugs and guns, a prior controlled buy eleven days earlier, Chadwell’s obstructive behavior, and the restraining order. Chadwell was sentenced to 48 months.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether sending a properly admitted video exhibit and a TV/player into the jury room for private replay during deliberations was an abuse of discretion	Chadwell: procedure unduly emphasized one piece of evidence and was improper	Government: exhibit was properly admitted and jurors may privately review exhibits during deliberations	Court: No abuse of discretion; jurors may review properly admitted exhibits in private, including replayable media
Whether sending the video into the jury room violated the defendant’s right to be present at all stages under Fed. R. Crim. P. 43(a)	Chadwell: private replay in jury room implicated Rule 43(a) right to be present	Government: Rule 43(a) does not extend to private jury review of exhibits already played in open court	Court: No Rule 43(a) violation because the video was played in open court and no outsiders were present during deliberations
Whether the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) was properly applied for possession of a firearm in connection with another felony (drug trafficking)	Chadwell: enhancement not supported by sufficient evidence of connection or intent	Government: guns found near drugs, prior controlled buy, obstructive conduct, and restraining order support connection and intent	Court: Enhancement proper—preponderance of evidence supports that firearms facilitated or were intended to facilitate drug trafficking

United States v. Abonce-Barrera, 257 F.3d 959 (9th Cir. 2001) (trial court discretion to send exhibits to jury room)
United States v. DeCoito, 764 F.2d 690 (9th Cir. 1985) (jurors may examine exhibits during deliberations)
United States v. Cuozzo, 962 F.2d 945 (9th Cir. 1992) (audio tapes properly admitted may be made available to jury for review)
United States v. Sacco, 869 F.2d 499 (9th Cir. 1989) (concern that private replay of testimony may cause jurors to replay crucial moments)
United States v. Hernandez, 27 F.3d 1403 (9th Cir. 1994) (readback of testimony to jury at court’s discretion; safeguards required to avoid undue emphasis)
United States v. Polanco, 93 F.3d 555 (9th Cir. 1996) (gun found near drugs supports enhancement under § 2K2.1(b)(6)(B))
United States v. Noushfar, 78 F.3d 1442 (9th Cir. 1996) (Rule 43 violation where jury privately heard tapes never presented in open court)
United States v. Monserrate-Valentin, 729 F.3d 31 (1st Cir. 2013) (recordings are like other documentary evidence and may accompany jury)