                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-14-2005

USA v. Saunders
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3027




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                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                    NO. 04-3027
                                   ____________


                          UNITED STATES OF AMERICA


                                          v.

                   KENNETH E. SAUNDERS a/k/a Butch Saunders

                                Kenneth E. Saunders,

                                          Appellant

                                   ____________




                   On Appeal from the United States District Court
                            for the District of New Jersey
                      District Judge: Honorable John C. Lifland
                                  No. 03-CR-00236-1
                                    ____________




                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   June 10, 2005

       BEFORE: AMBRO, VAN ANTWERPEN and TASHIMA,* Circuit Judges



  *
    The Honorable A. Wallace Tashima, Senior United States Circuit Judge for the Ninth
Circuit, sitting by designation.
                                   (Filed: June 14, 2005)

                                       ____________

                                OPINION OF THE COURT
                                     ___________

TASHIMA, Senior Circuit Judge

       In this appeal from a judgment of conviction and sentence, defendant Kenneth E.

Saunders, Jr. (“defendant” or “Saunders”) raises two issues, one of which we answer and

the other of which we refer back to the district court.

       Defendant was convicted, after trial by jury, of one count of conspiracy to offer

corrupt payments to an elected local official, in violation of 18 U.S.C. § 371. After the

trial on Count One,1 defendant pleaded guilty to Counts Two, Four, and Five, aiding and

assisting in the preparation and filing of fraudulent federal income tax returns, in

violation of 26 U.S.C. § 7206(2). Defendant was sentenced to a 33-month term of

imprisonment and three-year term of supervised release. The sentence included a

substantial enhancement imposed under the Sentencing Guidelines. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm the conviction and

remand for resentencing in light of United States v. Booker, 125 S. Ct. 738 (2005).

                                              I.

       Defendant was elected in 1996 to the Asbury Park City Council at an interim


   1
        Counts Two through Six were severed from Count One, the conspiracy count, and
trial proceeded only on Count One.

                                             -2-
election and won reelection in 1997. Rayfield James, Jr., the codefendant in this case,

was his campaign manager in both elections . As the top vote-getter among the five

members of the City Council in the 1997 election, Saunders became Mayor of Asbury

Park.

        During this period, redevelopment of Asbury Park’s oceanfront was an active

matter before the Council. Sheila Solomon, a member of the City Council, became

concerned with corruption in connection with the oceanfront redevelopment and other

matters. After her complaints to the Governor, State Attorney General, and an

Assemblyman went unanswered, she met with the Federal Bureau of Investigation. As a

part of the FBI investigation, she agreed covertly to record her conversations with

Asbury Park officials, including Saunders, and persons who did business with the City.

During the ensuing two years, she recorded thousands of conversations.2

                                             II.

        Defendant does not challenge the sufficiency of the evidence to sustain his

conviction. Rather he contends that certain “other acts” evidence was admitted in

violation of Federal Rule of Evidence 404(b). We review a district court’s ruling

admitting Rule 404(b) evidence for an abuse of discretion. United States v. Butch, 256

F.3d 171, 175 (3d Cir. 2001). To satisfy Rule 404(b), we require that other acts



   2
       Because we write solely for the parties, we do not set forth the facts of this case,
except as necessary to understand our disposition.

                                             -3-
evidence:

       (1) have a proper evidentiary purpose, (2) be relevant under Rule 402, (3) satisfy

       Rule 403 (i.e., not be substantially more prejudicial than probative), and (4) be

       accompanied by a limiting instruction, when requested . . . that instructs the jury

       not to use the evidence for an improper purpose.

United States v. Cross, 308 F.3d 308, 320-21 (3d Cir. 2002) (footnote omitted). Because

“Rule 404(b) is a rule of inclusion rather than exclusion,” it “favor[s] the admission of

other crimes, wrongs, or acts if such evidence is relevant for any purpose other than to

show a mere propensity or disposition on the part of the defendant to commit the crime.”

United States v. Cruz, 326 F.3d 392, 395 (3d Cir. 2003) (citation omitted).

       Partially granting the government’s motion in limine, the trial court permitted the

introduction of two categories of Rule 404(b) evidence at trial: (1) The so-called

“Greekfest” incident, implying that Saunders thought that Solomon was foolish for not

accepting a kickback; and (2) Saunders’ acceptance of a used Mercedes-Benz from

“Uncle Phil” Konvitz.3

       The Greekfest is a city-sponsored event to draw college fraternity and sorority

members to Asbury Park. After the City Council voted to award the 1998 Greekfest


   3
       The district court denied the in limine motion with respect to evidence that
Saunders urged Solomon to keep a diamond watch that the City Attorney tried to give her
and, when she refused, suggested that she “give it to me, I’ll pawn it.” The government
did not press its motion with respect to evidence that Saunders claimed bogus
unreimbursed business expenses as Mayor on his federal tax returns.

                                            -4-
contract to a vendor, Solomon was approached by the vendor and offered a kickback for

her support. When Solomon rejected the offer, Saunders told the offeror that Solomon

“would be down with the plan.” The next day, when Solomon complained to Saunders

about the kickback offer, he looked at her as if she were crazy and asked “Don’t you

want to go on a cruise?” Solomon retorted that Saunders was “going on a cruise all

right” – “a cruise up the river.”

        Shortly after the 1996 interim election, Saunders received a used Mercedes-Benz

from “Uncle Phil” Konvitz, a local political figure, for which he either paid nothing, or

paid less than full value.4

       The district court held the Greekfest evidence admissible because the key

statement of defendant, “Don’t you want to take a cruise,” “suggests an intent to

encourage corrupt activity by Ms. Solomon,” and that such intent was “the key to the

charge of conspiracy. . . .” It held the Mercedes-Benz evidence admissible because

Konvitz was not directly involved in the conspiracy charge and the evidence showed

“Saunders’ motive unjustly to enrich himself [] which is the same motive that the

government offers with respect to the charge in the indictment.” Supp. App. 97-98.

       The district court gave an appropriate and unobjected-to limiting instruction when

each of these incidents was testified to, as well as an instruction at the end of the case



   4
       Saunders claimed that he made several installment payments after which Konvitz
told him not to make any more payments.

                                             -5-
reminding the jury of the limited use it could make of the 404(b) evidence.

         Defendant’s primary argument is that the prior acts evidence was not relevant

under Supreme Court precedent, which requires that it be “probative of a material issue

other than character.” Huddleston v. United States, 485 U.S. 681, 685 (1988). We do

not find the argument to be meritorious. Although it is true, as defendant contends, that

the Greekfest evidence does not show that he received any bribe, that was not the

purpose for which it was offered. Instead, it was offered to show that Saunders

encouraged Solomon to accept a bribe for her City Council vote, from which a corrupt

intent clearly could be inferred. Thus, the evidence was relevant to show Saunders’

intent (and absence of mistake or other innocent motive) in conspiring to offer Solomon

bribes in connection with the oceanfront redevelopment matter before the City Council.

         With respect to the Mercedes-Benz matter, defendant argues that any “act”

involved was not his act, but Konvitz’s act of not compelling full payment of the loan for

the automobile – that there was no evidence that Saunders did not intend to repay the car

loan in full. But the evidence also supports that the “other act” was Saunders’

acceptance of the Mercedes from a businessman who did substantial business with the

City Council in circumstances which suggest that strings were attached to Konvitz’s

offer.

         In this context, evidence as to both incidents was probative as to Saunders’ intent,

and thus relevant. It is also clear from the record that the district court balanced the


                                              -6-
evidence’s probative value against any undue prejudicial effect under Rule 403. In fact,

as stated earlier, only two of the four 404(b) incidents listed in the government’s in

limine motion were admitted. We conclude that the district court did not abuse its

discretion in admitting these two instances of Rule 404(b) evidence. See Cross, 308 F.3d

at 320, 324; United States v. Vega, 285 F.3d 256, 261 (3d Cir. 2002).

                                            III.

       Defendant contends that under Blakely v. Washington, 124 S. Ct. 2531 (2004), the

enhancement of his sentence based on judge-found facts violates his rights under the

Fifth and Sixth Amendments to the Constitution. Defendant’s contention has since been

overtaken by Booker, which rendered the Federal Sentencing Guidelines advisory. See

Booker, 125 S. Ct. at 764. Under the circumstances of this case,5 we remand this case for

resentencing. See United States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc).

                                            IV.

       For the foregoing reasons, the judgment of conviction is AFFIRMED, the

sentence is VACATED, and the case REMANDED for resentencing.6




   5
        The government agrees that Saunders’ sentence should be remanded “for
clarification under Booker.”
   6
       We deny the government’s motion that we issue a precedential opinion in this case.
The issues of concern referred to in the motion are not issues that need to be decided in
this appeal.

                                            -7-
