United States v. Jones

• Decision Date: 29 May 2013
• Docket Number: No. 12–4211.,12–4211.
• Citation: 716 F.3d 851
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jermar Bernard Marlon JONES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

716 F.3d 851

UNITED STATES of America, Plaintiff–Appellee,

v.Jermar Bernard Marlon JONES, Defendant–Appellant.

No. 12–4211.

United States Court of Appeals, Fourth Circuit.

Argued March 20, 2013.

Decided May 29, 2013.

ARGUED:James R. Theuer, Norfolk, Virginia, for Appellant. Randy Carl Stoker, Office of the United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Neil H. MacBride, United States Attorney, Alexandria, Virginia, Joseph E. DePadilla, Assistant United States Attorney, Office of the United States Attorney, Norfolk, Virginia; Gillian R. Whitford–McHale, Law Student, University of Virginia, Charlottesville, Virginia, for Appellee.

Before KING, DIAZ, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge DIAZ wrote the opinion, in which Judge KING and Judge FLOYD joined.

OPINION

DIAZ, Circuit Judge:

A federal jury convicted Jermar Jones of several criminal counts stemming from his participation in a scheme to arrange fraudulent marriages between Navy sailors and foreign nationals. The district court sentenced Jones to fifty-two months' imprisonment for each count of conviction, all to be served concurrently. On appeal, Jones asserts two Sixth Amendment errors. First, he contends the admission of hearsay statements made on recorded prison telephone calls violated the Confrontation Clause of the Sixth Amendment. Second, Jones argues the district court's refusal to strike a juror for cause violated his Sixth Amendment right to an impartial jury.

Jones also challenges two sentencing decisions by the district court. First, he asserts the district court erred in grouping the counts of conviction under the United States Sentencing Guidelines. Second, Jones argues that the district court erred in calculating the total loss amount under the Sentencing Guidelines.

As we explain, we conclude that the district court did not err at either the guilt or sentencing phases. Accordingly, we affirm.

I.

Jermar Jones served in the United States Navy for several years. Between 2006 and 2008, Jones and codefendant Justin Robbins orchestrated several fraudulent marriages between several of his shipmates and foreign nationals. The arrangements provided mutual benefits. The sailor would receive a monthly “Basic Allowance for Housing” (“BAH”) stipend to support his spouse, while the foreign national would enjoy an opportunity to secure permanent residency in the United States. For his matchmaking services, Jones would either require the alien spouse to pay him a fee or demand receipt of his shipmate's “back pay”—funds paid to the sailor for the interim period between his marriage and the commencement of his BAH stipend.

Jones individually arranged the marriages of (1) Chitara Bowers and Otis Jones (“Otis”); (2) Ruben Ortiz and Devenee Duncan; (3) Darius Alexander and Nasara Smith; and (4) Andrea Wallace and Ashton Antoine. In addition to coordinating the nuptials, on multiple occasions Jones intimidated the participants to preserve the conspiracy. For example, when the Naval Criminal Investigative Service (“NCIS”) began looking into the validity of the marriages, Jones threatened Alexander and Bowers and warned them not to cooperate, telling Bowers he would “handle” her and that he knew “where [you] stay at.” J.A. 200.

A grand jury returned an eleven-count indictment charging Jones with one count of conspiracy to commit marriage fraud under 18 U.S.C. § 371 and 8 U.S.C. § 1325(c), four counts of aiding and abetting marriage fraud under 18 U.S.C. § 2 and 8 U.S.C. § 1325(c), three counts of aiding and abetting false claims to the United States Navy under 18 U.S.C. §§ 287 and 2, two counts of witness tampering under 18 U.S.C. § 1512(b)(3), and one count of making a false statement to the NCIS under 18 U.S.C. § 1001(a)(2).

During jury selection, Juror No. 42 disclosed that she was the host of a conservative radio talk show that discussed immigration issues. When asked about her views on illegal immigration, Juror No. 42 stated that “[m]y mom was naturalized ... and she said, do you know, I came here legally and I did what I had to to come to this country legally, and everybody else should have to do the same thing. And I agree with that sentiment.” J.A. 38–39. Juror No. 42 admitted that “[m]y show is conservative,” J.A. 38, but gave assurances that she could decide the case impartially. The district court denied Jones's motion to strike the juror for cause.

At trial, most members of the conspiracy testified against Jones, claiming that Jones facilitated fraudulent marriages for them and others. The government also introduced three jailhouse phone conversations between Jones and his cousin Otis. One of these conversations included a three-way call between Jones, Otis, and Jones's uncle Austin Jones (“Austin”). The phone calls were recorded by the Chesapeake Correctional Center (“CCC”), where Otis was incarcerated. Before a call from a prisoner is connected, the inmate telephone system broadcasts an advisory to the parties that “all calls are subject to recording.” J.A. 76.

During one jailhouse phone call, Jones told Otis “don't let em ... try to break you, man.... We have everything safe for you[.]” J.A. 479. Similarly, Jones instructed Otis to “tell them men there is no fraud, no fraud. Tell your, tell your, tell your attorney to give me a call, man.” J.A. 504. Jones also suggested that his family would support Otis should he return home to Grenada. Finally, Otis and Jones both expressed concern that NCIS agents would secure Bower's cooperation.

Perhaps the most damaging statement occurred when Austin joined one of the jailhouse calls and told Otis:

Tell them you didn't conspire to do anything; you just, you, you, you married this woman because you saw her, you fell in love with her and all this stuff, you know, and just tell him exactly. That's how it is; you didn't conspire, that's not conspiracy!

J.A. 491. Defense counsel objected that the statements by Otis and Austin were inadmissible hearsay. The district court, however, admitted the statements under the coconspirator exclusion to hearsay, Fed.R.Evid. 801(d)(2)(E), and to provide context to the admissible statements of Jones.

After a four-day trial, the jury convicted Jones on all counts. At sentencing, Jones objected to the presentence report (“PSR”) that only grouped one of the two witness tampering counts (Count 10) with the false claims counts (Counts 6–8). The district court overruled that objection, sentenced Jones to fifty-two months' imprisonment on each count of conviction, all to run concurrently, and ordered $134,702.39 in restitution.

II.

We first address Jones's objection to the admission of the prison telephone calls. Before the district court, Jones tied his objection to the non-constitutional hearsay prohibition of Federal Rule of Evidence 802. On appeal, Jones has switched course and raised a Confrontation Clause challenge. We generally limit our review of claims not properly preserved in the district court to plain error. Jones, however, argues that plain error review should not apply because any Confrontation Clause objection would have been futile after the district court ruled the evidence admissible under the coconspirator exclusion to hearsay. We need not decide that question for, as we explain below, no Confrontation Clause violation occurred.

The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right to ... be confronted with witnesses against him.” This constitutional right to confrontation bars extrajudicial “testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53–54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

While Jones concedes that his statements on the phone calls were admissible under the party opponent exception to hearsay, seeFed.R.Evid. 801(d)(2)(A), he challenges the admission of the statements made by Otis and Austin during the calls. Specifically, Jones now contends that Otis and Austin gave “testimonial” statements on the prison phone calls without Jones having had the opportunity to cross-examine the declarants before or at trial. We disagree with Jones's argument.

While the Supreme Court has postponed “any effort to spell out a comprehensive definition of ‘testimonial,’ ” Michigan v. Bryant, –––U.S. ––––, 131 S.Ct. 1143, 1153, 179 L.Ed.2d 93 (2011) (internal quotations omitted), it has limited the Confrontation Clause's reach to those statements “made under circumstances which would lead an objective witness reasonably to believe that the statements would be available for use at a later trial.” Crawford, 541 U.S. at 52, 124 S.Ct. 1354.^* We have paraphrased this standard to mean that statements are testimonial when “a reasonable person in the declarant's position would have expected his statements to be used at trial—that is, whether the declarant would have expected or intended to ‘bear witness' against another in a later proceeding.” United States v. Udeozor, 515 F.3d 260, 268 (4th Cir.2008).

In conducting that contextual inquiry, we reject the proposition advanced by Jones that a declarant's knowledge that he is being recorded is dispositive. Even if Otis and Austin were aware that the prison was recording their conversation, a declarant's understanding that a statement could potentially serve as criminal evidence does not necessarily denote “testimonial” intent. See Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (holding statements made during 911 emergency phone call were non-testimonial when uttered only “to enable police assistance to meet an ongoing emergency”); United States v. Shavers, 693 F.3d 363, 390, 395–96 (3d Cir.2012) (holding that inmates who received advisory that prison phone calls were recorded did not give “testimonial” statements); United States v. Ellis, 460...