As Amended November 6, 2015.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Steven J. McAuliffe, U.S. District Judge.
Theodore M. Lothstein and Lothstein Guerriero, PLLC, was on brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom Donald Feith, Acting United States Attorney, was on brief, for appellee.
Before Torruella, Lynch, and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
Convicted of three counts of distribution of a controlled substance and sentenced to serve 120 months in prison, Sean Brown appeals the denial of his motion for a new trial based on the inadvertent submission of evidence that had previously been ruled inadmissible. Finding no reversible error, we affirm.
I. Facts and Background
Brown's arrest and conviction were the culmination of an investigation that began when an informant, Douglas Landry, reported to the Nashua, New Hampshire, Police Department that he was buying crack from Brown and that Brown had threatened him because of an outstanding drug debt. Landry agreed to assist the Nashua police by making three controlled drug purchases from Brown. Nashua Police also reported making a series of other controlled purchases of crack from Brown through an undercover officer.
On February 24, 2010, after Landry's last controlled buy from Brown, Nashua police arrested Brown. Federal prosecutors procured a six-count indictment charging Brown with five counts of distribution of crack cocaine arising out of purchases reported by the undercover officer and one count of possession of crack cocaine with intent to distribute based on crack Nashua police reported finding in Brown's hat when they arrested him.
After prosecutors learned of allegations of misconduct by the undercover officer, they dismissed the original indictment with prejudice. Prosecutors thereafter filed a new indictment, alleging three counts of distribution of crack cocaine based on the controlled buys by Landry, plus a fourth count again alleging possession of crack cocaine with intent to distribute based on the crack that Nashua police reported finding in Brown's hat as described in the original indictment. The court dismissed that fourth count with prejudice as duplicative of the same count included in the original indictment that had been dismissed with prejudice. The court also granted Brown's motion in limine to exclude evidence related to the dismissed count. After thereafter receiving an exhibit list from the government that included evidence related to the dismissed count, Brown renewed his motion in limine, which the court again granted, this time from the bench on the second day of trial.
At trial, the government based its case on law enforcement's surveillance of Landry's controlled buys with Brown, audio recordings of Brown talking to Landry, and Brown's video-recorded interview with Nashua Sergeant Francis Sullivan after Brown's arrest. The government presented the testimony of five surveilling officers to describe the procedure used to monitor the controlled buys. Although they did not see Landry give Brown money, did not see Brown in possession of cocaine, and did not see Brown give cocaine or any other substance to Landry during the three controlled buys, the officers testified that they provided Landry with cash to make the buys, that they kept him in ...