                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                    No. 13-1395
                                   _____________

                          UNITED STATES OF AMERICA

                                          v.

                                ANTHONY SPENCE,
                                            Appellant
                                  ______________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                      (D.C. Crim. No. 2-09-cr-00682-003)
                   District Judge: Honorable Juan R. Sanchez
                                 ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 16, 2014
                                   ____________

               Before: RENDELL, ROTH and BARRY, Circuit Judges

                               (Filed: February 4, 2014)
                                    ____________

                                      OPINION
                                    ____________

BARRY, Circuit Judge

       Anthony Spence was convicted after trial of one count of conspiracy to distribute

controlled substances, in violation of 21 U.S.C. § 846, and one count of conspiracy to

introduce misbranded drugs into interstate commerce, in violation of 18 U.S.C. § 371.
He was sentenced to a total of 70 months’ imprisonment. Spence now appeals his

conviction and sentence, arguing that the District Court erred at trial, when it admitted

into evidence statements made by a non-testifying co-defendant at a civil deposition, and

at sentencing, when it applied an aggravating role enhancement pursuant to § 3B1.1(a) of

the Sentencing Guidelines. We have jurisdiction pursuant to 28 U.S.C. § 1291, and will

affirm.

                                            I.

          The evidence at trial established that from 2003 to 2010, Spence owned and

operated The Spence Group and the websites PricebusterRX.com, PricebustersUSA.com,

and premierskincare.com, which sold prescription drugs, including controlled substances,

over the internet. Customers could request a prescription by answering an online or

telephone questionnaire, without visiting a doctor in person; Spence hired and paid

doctors to review the customers’ responses and issue prescriptions. Spence also paid a

pharmacy operated by co-defendant Wayne White, a licensed pharmacist, to fill and ship

the prescriptions. In connection with this business, Spence operated two offices, in

Richmond, Virginia, and Miramar, Florida, and hired and employed at least eight

individuals. He also contracted with a website developer and an e-commerce payment

processing company to support his business.

          On February 2, 2011, Spence was charged in a second superseding indictment

with conspiracy to distribute controlled substances, distribution of controlled substances,

conspiracy to introduce misbranded drugs into interstate commerce, and mail fraud.

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Spence proceeded to trial and was tried jointly with co-defendant White, who was also

charged with money laundering offenses.

       At trial, the government sought to introduce statements from a deposition of

White, taken in connection with a civil lawsuit brought against White and others by the

family of an individual who had purchased drugs over the internet. Spence objected,

arguing that the testimony was prejudicial and would violate his Sixth Amendment right

to confrontation because he lacked the ability to cross-examine White. The government

argued that the deposition did not present a Confrontation Clause issue because White’s

statements did not mention Spence1 and were made in the context of a civil deposition.

The District Court determined that the testimony was admissible and that any prejudice

could be addressed with a limiting instruction. Spence then moved for severance, which

the District Court also denied.

       Prior to playing the recording of the deposition testimony, the government briefly

described the nature of the recording to the jury, and stated: “Neither Anthony Spence


1
  The only portion of the deposition testimony that pertained to Spence was one question
at the beginning of the recording, in which White was asked, “Do you have a contract
with PricebustersRX?” to which he answered, “No.” (Supp. App. 367.) This was
obviously false, as a copy of the contract between Spence and White was admitted at trial
and Spence testified that they did have such a contract. Although the deposition
testimony did not reference or inculpate Spence in criminal conduct, it was arguably
prejudicial to Spence. It was evident from the deposition testimony that the civil lawsuit
involved an internet drug purchasing scheme similar to the scheme described in the
second superseding indictment, and the attorney taking the deposition aggressively
questioned White with respect to this scheme, challenging him in particular on the issue
of whether a valid doctor-patient relationship could exist (and, by extension, whether a
prescription could be valid) where circumstances strongly suggested that the doctor and
patient had had no direct communication.
                                              3
nor the Spence Group were named in the lawsuit to which this deposition pertains.”

(Supp. App. 366-67.) After the recording was played, the District Court instructed the

jury:

        I just want to give you a limiting instruction that the purpose and sole
        purpose of the testimony that you just heard, and that was the testimony of
        Mr. Wayne White, is to be admitted and only considered evidence in the
        case of the government against Mr. Wayne White and for no other purpose.
        You cannot consider that as any evidence whatsoever in the case of
        Anthony Spence. So that’s the limited purpose for which that evidence was
        submitted to you.

(Id. at 404.) In the government’s closing argument, it twice referenced the deposition and

replayed a portion of it. The government stated:

        [T]he lawsuit was filed by a customer – [indiscernible] – customer who had
        a prescription filled online, the same kind of – the same way that Anthony
        Spence’s prescriptions were filled and obtained. The lawsuit was filed in
        2007. It only named Wayne White as the defendant. It had nothing to do
        with Anthony Spence’s business.

(Id. at 637.) At the conclusion of the case, the District Court also instructed the jury:

        I caution you that you may consider Wayne White’s statements to the DEA
        and – DEA, regulatory agencies and in deposition only in resolving whether
        the defendant, Mr. Wayne White, is guilty or not guilty. You may not
        consider or discuss this evidence in any way in resolving whether Anthony
        Spence is guilty or not guilty.

(Id. at 675.)

        Spence testified in his own defense at trial; White did not testify. On October 15,

2012, following a nine-day trial, Spence was convicted of one count of conspiracy to

distribute controlled substances and one count of conspiracy to introduce misbranded

drugs into interstate commerce. He was acquitted of the other charges.

                                              4
       At sentencing, the District Court applied a four-level aggravating role

enhancement pursuant to § 3B1.1(a), finding that Spence had acted as an organizer or

leader of a criminal activity that involved five or more participants. Spence objected and

argued that although he had recruited doctors and hired employees in connection with his

business, he did not direct or lead the doctors or employees to engage in illegal activity.

The District Court concluded that the enhancement applied because the evidence

established that Spence was the owner, operator, and leader of the Pricebuster website,

that he controlled the business, and that he hired or entered into agreements with doctors,

the pharmacy (i.e., White), and his employees to support the business.

       With the four-level enhancement, Spence’s total offense level was 26.           His

Guidelines range, reflecting Criminal History Category I, was 63-72 months.2           On

January 30, 2013, the District Court imposed a sentence of 60 months’ imprisonment for

conspiracy to distribute controlled substances and 10 months’ imprisonment for

conspiracy to introduce misbranded drugs into interstate commerce, to run consecutively

for a total term of imprisonment of 70 months.3

                                            II.

       We review a district court’s decision as to the admissibility of evidence for abuse

of discretion. United States v. Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000). Our


2
  While ordinarily a Total Offense Level of 26 and a Criminal History Category of I
would result in a Guidelines range of 63-78 months, here the statutory maximum on the
counts of conviction was 72 months.
3
  White was also convicted on several counts; he was sentenced to 108 months’
imprisonment.
                                           5
review is plenary, however, with respect to a district court’s interpretation of the Federal

Rules of Evidence, relevant caselaw, and the Confrontation Clause. United States v.

Mitchell, 145 F.3d 572, 576 (3d Cir. 1998). We review factual determinations underlying

application of the sentencing guidelines for clear error, United States v. Helbling, 209

F.3d 226, 242-43 (3d Cir. 2000), and we will reverse “only if we are left with a definite

and firm conviction that a mistake has been made.” United States v. Dent, 149 F.3d 180,

189 (3d Cir. 1998).

       A.     Admissibility of Deposition Testimony

       The Confrontation Clause “applies to ‘witnesses’ against the accused – in other

words, those who ‘bear testimony.’” Crawford v. Washington, 541 U.S. 36, 51 (2004).

“[A]t its core, the Confrontation Clause is concerned with ‘testimonial’ hearsay.” United

States v. Berrios, 676 F.3d 118, 125 (3d Cir. 2012). The admission of White’s deposition

testimony at the joint trial did not implicate Spence’s Confrontation Clause rights because

White’s testimony was not offered against Spence and did not constitute testimonial

hearsay. The testimony was properly admitted against White as a non-hearsay statement

of a party-opponent under Federal Rule of Evidence 801(d)(2).

       On appeal, Spence does not cite or raise any argument under Bruton v. United

States, 391 U.S. 123 (1968). Even if we construed his Confrontation Clause argument as

Bruton claim, however, it would fail. In Bruton, the Supreme Court held that in the

context of a joint trial, a defendant’s Sixth Amendment rights are violated when

statements of a non-testifying co-defendant that implicate the defendant are admitted at

                                             6
trial, even where the court provides a limiting instruction. 391 U.S. at 126. In Bruton,

however, the Court recognized a “narrow exception” to the general principle that the jury

is presumed to follow the court’s instructions, applicable only when the non-testifying

co-defendant’s statement implicates the defendant. Richardson v. Marsh, 481 U.S. 200,

207 (1987). Because White’s statement did not implicate Spence in criminal conduct, the

Bruton exception is not applicable, and the jury is presumed to have followed the District

Court’s limiting instructions. See, e.g., United States v. Bryant, 655 F.3d 232, 252 (3d

Cir. 2011) (“[W]e generally presume that juries follow their instructions.”).

       B.     Application of Aggravating Role Enhancement

       Section 3B1.1(a) provides that a defendant’s offense level may be increased by

four levels if the defendant “was an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive.” The Commentary to

§ 3B1.1 provides that in determining whether to apply this enhancement:

       Factors the court should consider include the exercise of decision making
       authority, the nature of participation in the commission of the offense, the
       recruitment of accomplices, the claimed right to a larger share of the fruits
       of the crime, the degree of participation in planning or organizing the
       offense, the nature and scope of the illegal activity, and the degree of
       control and authority exercised over others.

U.S.S.G. § 3B1.1, cmt. n.4 (2012). We have held that “to be considered an organizer or

leader, the defendant must have exercised some degree of control over others involved in

commission of the offense.”      Helbling, 209 F.3d at 243 (internal quotation marks

omitted).


                                             7
       Spence argues that the District Court erred in applying this role enhancement

because he lacked control over the doctors he hired, who acted independently in

evaluating the customer questionnaires and determining whether to issue prescriptions.

The District Court’s factual findings supporting application of the enhancement,

however, are not clearly erroneous: the evidence at trial demonstrated that Spence

established,    owned,      and      operated      the    websites      PricebusterRX.com,

PricebustersUSA.com, and premierskincare.com and that he recruited and hired

employees and doctors to work in connection with the websites. Spence created and

oversaw the system through which the doctors issued prescriptions, and he regularly

followed up and checked in with the doctors regarding their work. The fact that the

doctors exercised their own professional judgment in the context of their work for Spence

does not alter the fact that, ultimately, they were recruited by, hired by, and answerable to

Spence. Cf. United States v. Belletiere, 971 F.2d 961, 970-72 (3d Cir. 1992) (holding

that application of the § 3B1.1(a) enhancement was erroneous where participants at issue

were not “answerable to” the defendant in any way); see also United States v. Helbling,

209 F.3d 226, 244 (3d Cir. 2000) (holding that “evidence that certain individuals

provided expertise . . . does not necessarily counter evidence that their actions were

controlled by another” for purposes of § 3B1.1(a)).

                                            III.

       For the foregoing reasons, we will affirm the judgment of conviction and sentence.




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