United States v. Garron Gonzalez, 2016 U.S. App. LEXIS 11690

Gonzalez, on North Dakota probation, had two cell phones searched after missing a meeting with his probation officer; searches revealed texts and nude photos exchanged with AG, a 15- or 16-year-old girl.
AG testified she met Gonzalez online, told him she was 16, exchanged sexual messages and nude photos at Gonzalez's prompting, and received money from him for phone credit.
The government admitted an audio-recorded January 2011 interview of AG into evidence; Gonzalez expressly stated he had "no objection" to admission though the recording was not played during live testimony.
Prior to jury deliberations, the court and counsel agreed that if the jury requested the recording, the entire interview would be played in open court with both parties present to avoid selective listening.
During deliberations the jury requested to hear the recording; the court played the full audio in open court under the agreed procedure, Gonzalez did not object, and the jury returned a guilty verdict for attempted sexual exploitation of minors (18 U.S.C. § 2251).
On appeal Gonzalez argued the court abused its discretion (and effectively reopened the trial) by allowing the jury to hear the recording, and alternatively challenged sufficiency of the evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether permitting the jury to hear an admitted but not previously played recording during deliberations improperly reopened the trial	Gonzalez: playing the recording after submission was improper and could unfairly influence the jury; concerned about selective playback	Government: recording was admitted evidence; court has discretion to allow juror review and procedure was agreed to prevent selective playback	Court: Gonzalez waived the issue by agreeing to admission and playback procedures; no abuse of discretion in allowing jury to hear the recording
Whether Gonzalez affirmatively waived the challenge to playback	Gonzalez: raised concern about partial playback but did not object to the court’s agreed safeguard	Government: Gonzalez assisted in and consented to the method for playing the recording, thus waived the objection	Court: waiver/affirmative acquiescence; review (if any) is for plain error and none existed
Sufficiency of the evidence for conviction	Gonzalez: moved for acquittal (argued insufficient evidence)	Government: AG’s testimony and photos on Gonzalez’s phones sufficed to support conviction	Court: Evidence viewed in light most favorable to verdict was sufficient; conviction affirmed

United States v. Jefferson, 725 F.3d 829 (8th Cir. 2013) (defendant waived challenge by failing to object to playing recorded calls at trial)
United States v. Muhlenbruch, 634 F.3d 987 (8th Cir. 2011) (trial court has discretion to allow jury review of admitted recordings or testimony)
United States v. Faul, 748 F.2d 1204 (8th Cir. 1984) (standard: appellate review of district court responses to juror requests is abuse of discretion)
United States v. Jones, 662 F.3d 1018 (8th Cir. 2011) (issue waived where defendant helped devise method for jury to hear tapes)
United States v. No Neck, 472 F.3d 1048 (8th Cir. 2007) (instructions on reviewing sufficiency of the evidence on appeal)
United States v. Cacioppo, 460 F.3d 1012 (8th Cir. 2006) (standard for granting a judgment of acquittal)
United States v. Gomez, 165 F.3d 650 (8th Cir. 1999) (quotation on standard for reasonable jury to find guilt beyond a reasonable doubt)