United States of America v. Anthony Saunders

United States Court of Appeals
For the First Circuit
No. 07-1675
UNITED STATES OF AMERICA,
Appellee,
v.
ANTHONY SAUNDERS,
Defendant, Appellant.
No. 07-1704
UNITED STATES OF AMERICA,
Appellee,
v.
SANDRA SAUNDERS,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Boudin, Selya and Stahl, Circuit Judges.

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Carmine P. Lepore for appellant Sandra Saunders.
Robert L. Sheketoff for appellant Anthony Saunders.
Jennifer Hay Zacks, Assistant U.S. Attorney, with whom Michael
J. Sullivan, United States Attorney, was on brief for appellee.
January 21, 2009

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STAHL, Circuit Judge. Sandra and Anthony Saunders, a
mother and son, were found guilty by a jury of conspiracy to
distribute marijuana. Sandra was also convicted of possession with
intent to distribute, and aiding and abetting; Anthony was
acquitted on this second count. On appeal, the defendants contest
various aspects of their convictions and sentences. After a
careful review of the record, we affirm in all respects.
Sandra and Anthony Saunders were involved in an extensive
marijuana distribution conspiracy that extended from Texas to
Massachusetts. The conspiracy came to the attention of the
Department of Homeland Security, Immigration and Customs
Enforcement (ICE) in 2004, when it learned that drug suppliers
based in Texas were looking to hire drivers to transport marijuana
from Texas to Massachusetts. Two undercover ICE agents infiltrated
the conspiracy and were hired to drive a tractor-trailer containing
a large shipment of marijuana from Texas to Massachusetts.
Upon arrival in Massachusetts on November 8, 2004, the
undercover agents driving the tractor-trailer were met at a hotel
parking lot by three men, including Anthony Saunders. One of the
men gave the agents a plastic bag containing $40,000 in cash as
payment for their services, and directed them to drive the tractor-
trailer to a warehouse in Billerica, Massachusetts.
At the warehouse, several men (not including Anthony)
unloaded the marijuana. A police helicopter, flying overhead,

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videotaped the unloading of the truck. Shortly after the
unloading, a red pickup truck arrived at the warehouse and four
large green containers were placed in the bed of the truck. Agents
followed the pickup truck to a home in Billerica, Massachusetts,
where they found Frederick Pidge and Anthony Saunders. When
questioned at the residence, Anthony admitted that he had been at
the hotel parking lot earlier that day, but only to drop off a
friend. The agents obtained a search warrant for the four
containers in the red pickup truck and in the ensuing search
discovered that they contained 76 "bricks" of marijuana, totaling
585 pounds.
Later on the same day, November 8, a white Ford Econoline
van arrived at the Billerica warehouse. It was driven by Sandra
Saunders, who was accompanied by her husband, Leon Romprey. Upon
arriving at the warehouse, Romprey loaded large trash bags into the
rear of the van. Shortly after leaving the warehouse, state police
stopped and searched the van, which yielded 14 large trash bags
containing 67 "bricks" of marijuana. Again, a police helicopter
videotaped portions of the arrival and loading of the van, and the
police stop.
A cooperating witness, the owner of the warehouse,
testified at trial that Anthony had told him that he (Anthony) had
been in the drug business for twenty years, and that the risks of
the operation were minimal. The warehouse owner also testified

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that Anthony was the person who had arranged to rent the warehouse
for the marijuana deliveries and that Anthony usually paid the
warehouse owner directly in cash for use of the space.
A second cooperating witness testified that he had helped
unload marijuana shipments at the warehouse on four or five
occasions. He also testified that another member of the conspiracy
had told him that Anthony was "the boss" of the operation and was
the one who was in contact with the marijuana suppliers. The
witness also identified Sandra Saunders, and said he had seen her
at the warehouse twice when marijuana was being delivered. He said
that on both occasions she had loaded trash bags of marijuana into
her van before leaving.
Sandra and Anthony Saunders were indicted in July 2006,
along with two other defendants, and charged with conspiracy to
distribute at least 1,000 kilograms of marijuana, in violation of
21 U.S.C. § 846 (Count One), and possession of at least 100
kilograms of marijuana with intent to distribute and aiding and
abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2
(Count Two). The district court denied Sandra's motion to sever
the trial from that of her son Anthony.
Sandra was found guilty on both counts, while Anthony was
only found guilty on Count One, the conspiracy count, and was
acquitted on Count Two, the possession charge. Sandra was
sentenced to 120 months' incarceration, followed by eight years'

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At oral argument, counsel for Anthony Saunders raised a 1
Kimbrough issue. See Kimbrough v. United States, 128 S. Ct. 558
(2007). The basic claim was that the district court failed to
understand the extent of its discretion to deviate from the
sentencing guidelines based on a policy disagreement. However, a
fair reading of the sentencing transcript does not lead to that
conclusion. Counsel for Saunders is correct that the judge
discussed the policy question of whether marijuana cases should be
treated more leniently than other drug cases. However, it is
evident from the judge's overall comments that he was aware of his
ability to fashion a sentence that differed from the guideline
range, and that, in his view, it was not appropriate to deviate
from the guidelines in this case given the extent of the marijuana
distribution operation.
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supervised release. Anthony was sentenced to 235 months'
imprisonment, and five years' supervised release. Anthony's
sentence was longer than Sandra's because the district court
increased Anthony's base offense level by four, under U.S.S.G. §
3B1.1(a), based on a finding that he was a leader or organizer of
criminal activity involving five or more participants.
On appeal, the co-defendants each raise one independent
issue and one joint issue. We consider first the independent 1
claims and then the joint claim.
First, Sandra claims that the trial court erred by
denying her motion to sever her trial from that of her co-
defendant, Anthony. She alleges that she was unfairly prejudiced
by the joint trial because of "the great disparity in the evidence
presented against her and her co-defendant, and by the admission of
evidence that would not have been independently admissible against
her."

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Rule 14(a) of the Federal Rules of Criminal Procedure
permits a trial judge to sever a defendant's trial if a
consolidation "appears to prejudice a defendant." However, we
afford great deference to the trial court in deciding whether to
grant a severance and review only for "manifest abuse of
discretion." United States v. DeLuca, 137 F.3d 24, 36 (1st Cir.
1998). As we have said many times, the "general rule is that those
indicted together are tried together to prevent inconsistent
verdicts and to conserve judicial and prosecutorial resources."
United States v. Soto-Beniquez, 356 F.3d 1, 29 (1st Cir. 2004).
The preference for a joint trial is particularly strong where the
charge is conspiracy. See DeLuca, 137 F.3d at 36; see also United
States v. Tejeda, 481 F.3d 44, 54 (1st Cir. 2007) ("This rule has
particular resonance in drug conspiracy cases, where multiple
defendants often share a single indictment.").
The trial court's refusal to sever Sandra's trial did not
amount to a manifest abuse of discretion, or for that matter any
error at all. It was entirely proper for Sandra to be tried
together with her son, and there is nothing about a joint trial in
this case that distinguishes it from any other run-of-the-mill
conspiracy case. Though Sandra clearly played a smaller role in
the conspiracy than her son, the nature of proving a conspiracy
charge is that "virtually all the evidence relating to the other
conspirators [is] also directly relevant to, and, therefore,

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Sandra argues that the fact that the jury convicted her on 2
Count Two (the possession charge) but acquitted her son on the same
charge supports her position that the joint trial substantially
prejudiced her due to "spillover." We disagree. Though the
evidence showed that Anthony was indeed a mastermind of the
operation while Sandra was not, as between the two defendants only
Sandra was found by law enforcement in actual possession of
marijuana. In contrast, Anthony could only have been convicted on
Count Two under a theory of constructive possession. Therefore,
the jury's verdict is not indicative of any prejudice created by
the joint trial, and in fact supports the conclusion that the jury
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independently admissible in, the prosecution's case against" the
defendant requesting severance. United States v. Flores-Rivera, 56
F.3d 319, 325-26 (1st Cir. 1995). And "[w]here evidence featuring
one defendant is independently admissible against a codefendant,
the latter cannot convincingly complain of an improper spillover
effect." United States v. O'Bryant, 998 F.2d 21, 26 (1st Cir.
1993).
We also note that the trial judge gave the jury clear
instructions to consider each defendant and each count separately.
The verdict slip as well provided separate pages for each defendant
and each count. Finally, the jury verdict itself suggests that the
jury did indeed make an individualized assessment as to each
defendant and charge, because as to Count One, the jury assigned
responsibility for different drug quantities to each defendant
(over 1,000 kilograms for Anthony, and over 100 but less than 1,000
kilograms for Sandra), and as to Count Two, the jury convicted
Sandra but acquitted Anthony of possession with intent to
distribute.2

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followed the district court's admonishment to consider each
defendant individually.
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We turn now to the second issue raised on appeal, this
one raised only by Anthony. Anthony takes issue with the district
court's decision at sentencing to increase his base offense level
by four levels, under U.S.S.G. § 3B1.1(a). That guideline advises
an increase of four levels where the district court finds that a
defendant was "an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive."
U.S.S.G. § 3B1.1(a). Anthony argues that the four-level leadership
increase was imposed in error because his acquittal on Count Two
(possession with intent to distribute) shows that the jury
determined that he was not the leader of the conspiracy. This
argument lacks logical coherence. The question of whether Anthony
was a leader of the conspiracy was simply not implicated by the
possession charge because no element of the charged crime of
possession required a determination as to leadership. In other
words, in order to reach a decision on whether Anthony was guilty
of possession, the jury did not need to consider whether Anthony
was a leader of the conspiracy.
In addition, even if such a consideration were implicated
by the jury's acquittal on the possession charge, a district judge
is able to find a fact for sentencing purposes under the less
onerous preponderance of the evidence standard, even if the jury

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did not find sufficient evidence to sustain the charge beyond a
reasonable doubt. See United States v. Picanso, 333 F.3d 21, 25-26
(1st Cir. 2003). Further, "we review role-in-the-offense
determinations, steeped in the facts of the case, for clear error."
United States v. Martinez-Medina, 279 F.3d 105, 123 (1st Cir.
2002). There was evidence from the cooperating witnesses that
Anthony was indeed one of the leaders of the drug conspiracy, that
he maintained the contacts with the drug suppliers in Texas,
arranged and paid for use of the Billerica warehouse, and held
himself out to be a leader of the operation. Given these facts,
the district court did not clearly err in imposing the four-level
increase; nor did the increase contradict any determination reached
by the jury.
Finally, we reach the third claim, which both defendants
press on appeal. Sandra and Anthony argue that they suffered
prejudicial error and should be granted a new trial because the
jury reached its verdict without reviewing audio and video footage
that had been admitted into evidence and previously shown at trial.
This court normally reviews a district court's response to a jury's
request to review evidence during deliberations for abuse of
discretion. See, e.g., United States v. Hyson, 721 F.2d 856, 865
(1st Cir. 1983). Though most cases in this area involve a jury
request to review transcripts of testimony or have testimony read
back, the considerations involved in those situations and the

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present one are analogous. In this case, because neither Sandra
nor Anthony objected to the district court's efforts to facilitate
the review of the audio and video exhibits, we review only for
plain error. United States v. Taylor, 54 F.3d 967, 972-73 (1st
Cir. 1995).
The facts surrounding the exhibits are as follows.
During the trial, the jury watched and listened to numerous audio
and video surveillance tapes which were properly entered into
evidence. The tapes included footage of the unloading of the
tractor-trailer, the loading of the marijuana into various other
vehicles, the police stop of Sandra's van, and audio tapes made by
the undercover agents in the hotel parking lot. During trial, the
footage was played for the jury using a laptop computer belonging
to the U.S. Attorney's Office, which was used exclusively for
courtroom presentations. Approximately two hours after the jury
began its deliberations, it sent a note stating, "Can we request a
player to hear audio and see video?" After discussing the note
with the parties, the court requested that the U.S. Attorney's
Office provide the jurors with a "clean" computer on which the
audio and video tapes could be played. The jury was brought back
into the courtroom about two hours later and informed that
we're having a little bit of technical difficulty getting
the equipment that's necessary to play the materials that
you had asked for and I think we'll have them shortly.
. . .
So, what I'm going to do is ask you to go back and
continue your deliberations.

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The jury returned to its deliberations. Meanwhile, the court was
informed that the U.S. Attorney's Office was experiencing technical
problems with playing back the audio and video on the "clean"
laptop. In response, the court proposed replaying the audio and
video in the courtroom for the jurors, in the presence of the
courtroom clerk, a technical support person from the U.S.
Attorney's Office, and the court reporter. However, counsel for
both Anthony and Sandra objected to this proposal on the ground
that jury deliberations should be completely private.
Less than an hour later, the jury sent a second note: "Is
the delay due to sensitive materials? And then, if so, can we just
get an audio player?" At this point it was almost 6:00 PM. The
judge sent the court clerk to tell the jury that the material would
not be available within the next half hour, and to ask whether the
jury would rather go home for the evening. Within about fifteen
minutes of that notification, the jury sent word that it had
reached a verdict. As a result, the audio and video surveillance
tapes were never reviewed by the jury during its deliberations.
Turning from the facts in this case to the governing law,
we have said that "in responding to a jury's expressed desire to
rehear testimony," a judge should consider such factors as "whether
the request is 'reasonably well-focused,' whether there is any
'physical or logistical impairment to reading' the testimony back,
and the amount of time the procedure would probably consume."

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We express no opinion as to whether the defendants' objection 3
on this point was justifiable.
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United States v. Akitoye, 923 F.2d 221, 226 (1st Cir. 1991)
(quoting United States v. Argentine, 814 F.2d 783, 787 (1st Cir.
1987)). In this case, the judge worked diligently to cause the
requested materials to be provided to the jury. When technical
problems delayed the provision of the tapes to the jury, the judge
proposed replaying the material in the courtroom instead -- a
proposal the defendants rejected. It was within the judge's 3
discretion to deny the jury's request entirely, given the "physical
or logistical impairment" that arose to replaying the video and
audio in the jury room. But the judge did not deny the request
outright; rather he took great pains to fulfill the request. Also
weighing heavily in favor of the court's approach are that the
court moved expeditiously to try to deal with the technical
problem, there was no indication of bad faith on the part of the
U.S. Attorney's Office in providing the means to review the
evidence, and the exhibits had been shown repeatedly to the jury at
trial. Therefore, we discern no error, plain or otherwise.
For the foregoing reasons, we affirm the judgments of the
district court.

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