                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                       No. 15-2593


                            UNITED STATES OF AMERICA

                                             v.

                             ROBERT RUSSELL SPENCE,
                                              Appellant


                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         D. C. Criminal No. 2-09-cr-00105-023
                      District Judge: Honorable David S. Cercone
                                  ________________

                       Submitted under Third Circuit LAR 34.1(a)
                                  on January 26, 2017

             Before: CHAGARES, RESTREPO and ROTH, Circuit Judges

                              (Opinion filed: July 13, 2017)




                                       OPINION *
                                   ________________


ROTH, Circuit Judge

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                      I. Introduction

       Robert Russell Spence, Jr., was a key figure in a large cocaine distribution

network. He received shipments of cocaine from California, and he passed them on to

distributors in Pennsylvania. In 2014, he was tried and convicted of conspiracy to

distribute five kilograms or more of cocaine and conspiracy to engage in money

laundering. He now appeals on four grounds. Because we find no merit in any of

Spence’s arguments, we will affirm the judgment of the District Court.

                                     II. Background

       The essential facts are not in dispute. From about 2000 to 2010, interrupted only

by a relatively short term in prison, Spence was a central player in a cocaine distribution

scheme. In this scheme, various individuals transported cocaine from California to

Spence in western Pennsylvania; in exchange, Spence arranged for money to be sent back

to California. Spence, in turn, sold the cocaine to a middleman who resold it. At the

same time, Spence attempted to run several legitimate businesses, including a high-end

car rental agency.

       In May 2009, Spence rented a warehouse at 621 Plum Street in Oakmont,

Pennsylvania. Inside, he stored many items related to the cocaine operation, including a

van registered to Cortorra Brownfield, with whom Spence ran a real estate business. On

February 9, 2010, pursuant to a search warrant, federal agents raided the warehouse. The

search warrant originally included authorization to search “any abandoned or parked

vehicles within the property, or within its curtilage,” but that phrase had been crossed out


                                             2
and initialed by a federal agent at the direction of a magistrate judge. Nonetheless, the

agents conducted a protective sweep of the van. When they entered it, they saw drug

paraphernalia in plain view.

       After this raid, Spence became aware that he was being investigated. Around this

time, he recorded several phone calls between himself and other individuals involved in

the drug trade.

       On March 31, 2010, Spence was charged by way of complaint, and then on April

28, 2010, charged in a one-count indictment with possession with intent to distribute five

kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii).

On March 29, 2012, he was charged in a second superseding indictment with (1)

conspiracy to distribute and possession with intent to distribute five kilograms or more of

cocaine, in violation of 21 U.S.C. § 846; (2) conspiracy to engage in money laundering

involving proceeds of the drug conspiracy, in violation of 18 U.S.C. § 1956(h); and (3)

possession with intent to distribute five kilograms or more of cocaine, in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii).

       Spence filed over one hundred motions, one of which was a motion to suppress the

evidence obtained in the search of the van within the warehouse at 621 Plum Street.

After a suppression hearing, the District Court ruled that he had no standing to challenge

the search of the van, because he did not own it.

       As the case proceeded, Spence was appointed counsel. He then decided to

proceed pro se at trial, and his appointed counsel remained as standby counsel. At the

trial, during Spence’s cross-examination of the prosecution’s first witness, the District

                                             3
Court expressed concern about Spence’s questioning. The District Court described the

questions as “marginally relevant,” “repetitive,” “confusing,” and “problematic.” The

District Court then decided to limit the length of Spence’s cross-examination to “equal

the time given for direct examination.” Spence contends that the District Court’s

decision was not fair.

       During trial, the government played a recording that Spence had made of one of

his phone calls. The government had obtained the recording at the time of Spence’s

arrest. When Spence later sought to play another such recording, the prosecutor opined

that the recordings were made in violation of Pennsylvania’s Wiretap Act—because only

one side of the conversation, Spence, consented to the recording—but that they were not

made in violation of federal law and, thus, were admissible. Spence, upon hearing that

making and playing the recordings violated state law, moved for a mistrial because the

prosecution had already played one such recording. The motion was denied. [App.

2273-2277, 2282.]

       After a two-week trial, the jury returned a verdict of guilty on the first two counts,

namely conspiracy to distribute five kilograms or more of cocaine and conspiracy to

engage in money laundering. The jury deadlocked on the third count, possession with

intent to distribute five kilograms or more of cocaine.

       For sentencing, the United States Probation Office conducted a presentence

investigation and prepared a presentence report. The report calculated Spence’s total

offense level as 48, higher than the maximum level on the sentencing table. Thus, his



                                              4
total offense level was reduced to the maximum of 43, for which the Sentencing

Guidelines recommend a sentence of life imprisonment.

       Spence filed several objections to the presentence report, none of which are

relevant here, and the District Court rejected them. On June 11, 2015, the District Court

held a sentencing hearing, at which Spence asked for leniency. The District Court

sentenced him to twenty years’ imprisonment, varying downward from the range

recommended by the Sentencing Guidelines for several reasons. One reason was to avoid

unwarranted sentencing disparities between Spence and other defendants who were part

of the same cocaine distribution network. Spence did not object to the sentence when it

was announced.

       Spence appealed. He raises four issues on appeal: (1) his motion to suppress the

evidence from the search of the van should have been granted because the search was in

violation of the Fourth Amendment, (2) the time limits placed on his cross-examination

violated his Sixth Amendment Confrontation Clause rights, (3) his motion for a mistrial

should have been granted, and (4) his sentence was unreasonable.

                                       III. Discussion

                                   A. Standard of Review

       As to the first issue, “we review a district court’s denial of the motion to suppress

for clear error as to the underlying facts, but exercise plenary review as to its legality in




                                               5
light of the court’s properly found facts.” 1 As to the third issue, we review for plain error.

As to the second and fourth issues, Spence argues that the appropriate standard of review

is abuse of discretion, while the government argues that the standard of review is plain

error because the Spence did not properly raise objections in the District Court. We need

not resolve this dispute, because none of the District Court’s decisions was an abuse of

discretion, much less plain error.

                                     B. Search of the Van

       Spence argues that the District Court erred in not granting his suppression motion

regarding the evidence obtained from the search of the van because he claims that the

evidence was obtained in violation of the Fourth Amendment. 2 The government

responds that the District Court did not err, but even if it did, any error was harmless. In

general, “[a]ny error, defect, irregularity, or variance that does not affect substantial

rights must be disregarded.” 3 If we determine, beyond a reasonable doubt, that “the error

complained of did not contribute to the verdict obtained[,]” then the error was harmless

and the conviction should be affirmed. 4

       Here, no evidence from the search of the van was introduced at trial. Hence, we

can determine beyond a reasonable doubt that the trial would have been identical if the


1
  United States v. Wilson, 413 F.3d 382, 385 (3d Cir. 2005) (quoting United States v.
Givan, 320 F.3d 452, 458 (3d Cir. 2003)) (internal quotation marks and brackets
omitted).
2
  See Herring v. United States, 555 U.S. 135, 144 (2009) (holding that evidence obtained
in flagrant or deliberate violation of the Fourth Amendment must be suppressed).
3
  Fed. R. Crim. P. 52(a).
4
  United States v. Stevenson, 832 F.3d 412, 427 (3d Cir. 2016) (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)) (internal quotation marks omitted).
                                               6
suppression motion had been granted. Consequently, even assuming arguendo that the

District Court had erred in denying the suppression motion, the error did not contribute to

the verdict obtained and was harmless.

                       C. Time Restriction on Cross-Examination

       Spence argues that the District Court’s time restriction on his cross-examination—

limiting him to the same time as that used by the government on direct examination—was

improper under the Confrontation Clause of the Sixth Amendment. That Clause provides

that “in all criminal prosecutions, the accused shall enjoy the right to . . . be confronted

with the witnesses against him . . ..” 5 The right to confrontation includes a right to cross-

examine witnesses. 6 However, “the right to confront and to cross-examine is not absolute

and may, in appropriate cases, bow to accommodate other legitimate interests in the

criminal trial process.” 7 Specifically, “[t]he right of cross-examination is tempered by

policy considerations relating to unfair prejudice, confusion of triable issues, undue

delay, presentation of cumulative evidence, and concern that the jury may be misled.” 8

       These policy considerations were the very concerns that drove the District Court to

impose its time restriction on Spence. The District Judge said to Spence, before imposing

5
  U.S. Const. amend. VI.
6
  Bruton v. United States, 391 U.S. 123, 126 (1968) (“‘[T]he right of cross-examination is
included in the right of an accused in a criminal case to confront the witnesses against
him’ secured by the Sixth Amendment . . ..”) (quoting Pointer v. State of Texas, 380 U.S.
400, 404 (1965)).
7
  Chambers v. Mississippi, 410 U.S. 284, 295 (1973) (citing Mancusi v. Stubbs, 408 U.S.
204 (1972)).
8
  Miranda v. Cooper, 967 F.2d 392, 402 (10th Cir. 1992). See also United States v.
Whitmore, 359 F.3d 609, 615-16 (D.C. Cir. 2004) (“The district court . . . has
considerable discretion to place reasonable limits on a criminal defendant's presentation
of evidence and cross-examination of government witnesses.”).
                                              7
the time restriction, “[Y]our cross-examination[] is taking an excessive amount of time. I

find that . . . many of [your questions] are marginally relevant, . . . some . . . are

repetitive, I think they are confusing, and they are just problematic.” The judge then said,

“My main concern is the time factor. I’m going to manage my docket by limiting the

length of your cross-examination to equal the time given for direct examination.” Based

on these statements, we conclude that the District Court was considering the proper

factors in making this decision. Furthermore, the District Court’s decision was amply

supported by the record. Up to that point, Spence had taken up a large amount of time

asking confusing, repetitive, or only marginally relevant questions. For these reasons, the

District Court’s decision was not an abuse of discretion.

         Spence argues that, as a pro se litigant, he should have been given more time than

was the government because his expertise is less than that of a prosecutor. He argues that

the District Court should have made an individualized determination for each witness

whether Spence had been given enough time for a reasonable cross-examination, and it

should have cut off questioning only when it decided that Spence’s questions had reached

the point of diminishing returns. 9 However, even assuming arguendo that Spence is

correct that the District Court so erred, we conclude that the error was harmless. Spence

has not suggested any potentially fruitful line of questioning that he was unable to pursue

due to the time limits, and we cannot imagine any.

                                  D. Motion for a Mistrial



9
    See United States v. Vest, 116 F.3d 1179, 1187 (7th Cir. 1997).
                                                8
       Spence argues that his motion for a mistrial based on the government’s playing his

recording of a phone call should have been granted. 10 He claims that the government

failed to lay a proper foundation for the admissibility of the recording because if the

recording was made for the purpose of committing a crime, it would be inadmissible and

the government never introduced evidence regarding the purpose of the recording. He

further argues that permitting the government to play an inadmissible recording is so

prejudicial that it deprived him of his fundamental right to a fair trial and therefore

warranted a mistrial. 11

       An objection to the admission of evidence for lack of foundation ordinarily must

be made when the evidence is initially offered 12 because a defendant who fails to object

at the time the evidence is offered “deprive[s] the Government of any opportunity to lay a

proper foundation.” 13 Here, Spence objected to the lack of foundation only on appeal.

At this point, “the objection is waived and we will review the admission of evidence only

for plain error.” 14 There is no plain error here. Even assuming arguendo that the

government should have laid a foundation for the admission of the recording, any error



10
   He does not argue, as he did below, that the motion should have been granted because
playing the recording was illegal under state law.
11
   See United States v. Xavier, 2 F.3d 1281, 1285 (3d Cir. 1993).
12
   United States v. Bay, 762 F.2d 1314, 1317 (9th Cir. 1984) (“[I]f, when evidence is
offered, there is no objection based on lack of a foundation, and the evidence is received,
the point is not available on appeal.” (citing United States v. Valdivia, 492 F.2d 199, 208
(9th Cir. 1973))).
13
   United States v. Morton, 391 F.3d 274, 277 (D.C. Cir. 2004) (citing Bartleson v.
United States, 96 F.3d 1270, 1278 (9th Cir. 1996)).
14
   Government of the Virgin Islands v. Archibald, 987 F.2d 180, 184 (citing United States
v. Young, 470 U.S. 1, 13-14 (1985)).
                                              9
was harmless because Spence told the jury that he made the recording for a lawful

purpose.

                              E. Reasonableness of Sentence

       Spence argues that his sentence is unreasonable because other members of the

drug trafficking conspiracy who may have been more culpable were given equal

sentences, and those who may have been equally culpable were given lesser sentences.

       We review sentences for reasonableness. Procedurally, a sentencing court must,

among other things, consider the relevant statutory factors, 15 which include “the need to

avoid unwarranted sentence disparities among defendants with similar records who have

been found guilty of similar conduct . . ..” 16 The District Court specifically cited this

factor as one it considered in formulating its sentence. Although the other defendants

who took part in the conspiracy were sentenced to equal or lesser terms of imprisonment,

the other defendants pleaded guilty. A court may “extend[] leniency in exchange for a

plea of guilty and . . . not extend[] leniency to those who have not demonstrated those

attributes on which leniency is based.” 17 Even if the other conspirators were identically

situated to Spence, their guilty pleas could justify a difference in sentences. Thus, we

conclude that the District Court adequately considered the disparity factor.

                                       IV. Conclusion

       For the foregoing reasons, we will affirm the judgment of the District Court.



15
   See United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014).
16
   18 U.S.C. § 3553(a)(6).
17
   Corbitt v. New Jersey, 439 U.S. 212, 224 (1978).
                                              10
