U.S. v. Saunders

• Decision Date: 11 September 2007
• Docket Number: No. 05-5238.,05-5238.
• Citation: 501 F.3d 384
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rodney Maurice SAUNDERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

501 F.3d 384

UNITED STATES of America, Plaintiff-Appellee, v. Rodney Maurice SAUNDERS, Defendant-Appellant.

No. 05-5238.

United States Court of Appeals, Fourth Circuit.

Argued: May 25, 2007.

Decided: September 11, 2007.

ARGUED:

Sarah S. Gannett, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. Paul M. Tiao, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

ON BRIEF:

James Wyda, Federal Public Defender, John H. Chun, Assistant Federal Public Defender, Lauren E. Case, Staff Attorney, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Before MICHAEL and DUNCAN, Circuit Judges, and FRANK D. WHITNEY, United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed by published opinion. Judge MICHAEL wrote the opinion, in which Judge DUNCAN and Judge WHITNEY joined.

OPINION

MICHAEL, Circuit Judge:

Rodney Saunders appeals his conviction and sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). His case arises out of a robbery at a Baltimore, Maryland, liquor store. We affirm, holding that (1) a key witness's identification of Saunders as one of the robbers was reliable, even though the police showed the witness a photo array that was impermissibly suggestive; (2) there was no error when the jury was not given a special verdict form that would have allowed it to indicate whether it reached unanimous agreement on the specific gun or guns possessed by Saunders; (3) the evidence was sufficient to support Saunders's conviction on the § 922(g)(1) gun charge; and (4) the evidence was sufficient to support the four-level sentencing enhancement, see U.S.S.G. § 2K2.1(b)(5) (2004), based on Saunders's use of a firearm in connection with another felony offense.

I.

Saunders, Tavon Walker, and a third (unidentified) man entered the Club Paradise liquor store in Baltimore at 1:30 a.m. on December 8, 2003. Saunders and the unidentified man proceeded at gunpoint to rob the three customers in the store, after patting down and neutralizing the one security guard. Walker stayed at the entrance of the store to prevent anyone from entering or exiting.

The store's cashier, Tony Burton, witnessed the robbery from behind the bullet-proof window that separates the cash register from the area of the store accessible to customers. As the robbery was in progress, Burton picked up the telephone receiver, which was below the counter, and dialed 911. To avoid detection, he bent down and quickly stated that there was a "[r]obbery in progress at 1300 North Carey Street." J.A. 141. The robbers fled the store as Burton hung up the phone. Moments later, the 911 dispatcher called back, and Burton reported some of the details. He told the dispatcher that the liquor store had been robbed by three African American males carrying guns; that one of the robbers "had a long black jacket on, a hipster, and one had a gray . . . sweatshirt" with a "black scarf tied around his face," J.A. 615; and that the three robbers drove away in a blue Dodge Caravan minivan with "brown oak wood on the side," J.A. 615.

The dispatcher immediately reported the robbery and the description of the getaway vehicle over the police radio. A blue Dodge minivan with oak paneling was quickly spotted by two officers who were patrolling the neighborhood near Club Paradise in separate cruisers. Officer Osiris Lofton pulled behind the van and followed it to the intersection of Harlem Avenue and Carey Street, only six blocks away from Club Paradise. Officer James Gomez saw the van as he approached the intersection from the opposite direction. The two officers activated their blue lights and pulled the van over. Officer Lofton parked his cruiser behind the van, and Officer Gomez parked in front. Saunders immediately opened the van's sliding door and ran. As Saunders exited the van, Officer Gomez saw "a gun [fall] between the van and the curb." J.A. 287.

Officer Gomez pursued Saunders through a vacant lot, where Saunders reached into his waistband and tossed a dark, hard object to the ground. Saunders continued running north on Carey Street, across Lanvale Avenue, and on to Calhoun Street, where he discarded his leather jacket. Moments later, Officer Kenneth Ivery, who had been following Saunders in his cruiser, maneuvered his vehicle to block Saunders's path. This tactic slowed Saunders sufficiently to allow Officers Gomez and Ivery to catch up to him and tackle him to the ground.

Meanwhile, Officer Lofton pursued Walker, who had jumped out of the van after Saunders. Officer Lofton chased Walker for several blocks and captured him as he attempted to hide in a ditch near an alley. Walker was wearing a gray hooded jacket and a black bandana. Other participants in the robbery, including the third robber in the store, escaped in the minivan as the officers pursued Saunders and Walker.

After Saunders and Walker were captured, the police canvassed their flight routes and the area where the minivan was stopped. Three handguns were recovered. A black Bryco nine millimeter and a silver Smith & Wesson nine millimeter were found by the curb where Saunders got out of the minivan. The third handgun, a dark colored .380 caliber Tanfoglio, was recovered in the vacant lot where Officer Gomez saw Saunders throw an object to the ground. The Tanfoglio handgun was loaded with .380 Winchester ammunition, the same type that Saunders had bought three months earlier at a Sports Authority store in Baltimore. Officer Gomez also collected the medium length ("hipster") leather jacket that Saunders had discarded on Calhoun Street.

In the meantime, one or more officers went to the Club Paradise liquor store and asked Burton (the cashier) to accompany them to the area of the arrests for a "show up" identification of the suspects. One officer drove Burton to the area, but by the time they arrived, Saunders and Walker had already been transported to the police station. Burton was then taken to the station where, about two hours after the arrests, he participated in photo array identification procedures.

Officer Michael DeJesus gave Burton a photo array containing six color photos, arranged in two rows of three. Saunders's photo was located in the bottom right-hand corner. The five decoy or filler photos were taken from a computer program called the "District Court Tracking System." (This program selects photos from a large database after the police enter the suspect's physical characteristics, such as skin color, height, weight, age, hair style, etc.) The computer generated five photos of casually dressed African American males in their twenties, with closely cut hair, a thin mustache, and a medium build. Significantly, the five filler photos were taken against light backgrounds with overhead lighting. Saunders's photo, on the other hand, was set against a dark background and was taken without overhead lighting. Saunders's face therefore appears significantly darker than the faces of the decoy suspects.

Officer DeJesus did not inform Burton, as required by Baltimore City police procedures, that the photo array might not contain a photo of the suspect. (DeJesus conceded at trial that he never received training on administering photo arrays, nor had he reviewed the Baltimore City Police general order on photo array procedures.) In any event, DeJesus asked Burton whether he recognized from the robbery any of the persons in the array. Burton studied the six photos for approximately ten seconds before selecting Saunders's photo, stating that he was "[t]he guy who came in[to the store] second." J.A. 80. DeJesus then provided Burton another six-photo array that included a photo of Walker. Burton did not identify any of the persons in that array.

Saunders was indicted on one count for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was charged with possessing all three of the firearms recovered in his flight path, beginning with the two at the curb where he exited the minivan. Saunders moved to suppress the pre-trial photo identification and any in-court identification by Burton, claiming that his photo in the array was so suggestive that it violated his right to due process. After the district court denied the motion, Saunders went to trial and was convicted. At sentencing the district court imposed, over Saunders's objection, a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(5) (2004) for the use of a firearm in connection with another felony offense. With an adjusted guideline offense level of 28 and a criminal history category of IV, Saunders's nominal guideline range was 110-137 months' imprisonment. Because the maximum term authorized by statute for a conviction under 18 U.S.C. § 922(g) is 120 months, Saunders's actual guideline range was restricted to 110-120 months. See 18 U.S.C. § 924(a)(2); U.S.S.G. § 5G1.1, comment. He was sentenced to a term of 120 months.

Saunders appeals his conviction and sentence. He argues (1) that the district court erred in denying his motion to suppress the cashier's out-of-court and in-court identifications of him; (2) that his constitutional right to a unanimous verdict was violated because the jury was not provided with a special verdict form requiring unanimous agreement on the particular gun or guns possessed; (3) that there was insufficient evidence to support his conviction for possession of a firearm; and (4) that the four-level enhancement under § 2K2.1(b)(5) was improper because the evidence was insufficient to prove that he participated in the Club Paradise robbery. We consider Saunders's arguments in turn.

II.

Saunders's principal argument is that the district court erred in denying his motion to suppress the out-of-court and in-court identifications of him by...