United States v. Cooper

• Decision Date: 10 June 2019
• Docket Number: No. 17-11548,17-11548
• Citation: 926 F.3d 718
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey COOPER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

926 F.3d 718

UNITED STATES of America, Plaintiff-Appellee,

v.Jeffrey COOPER, Defendant-Appellant.

No. 17-11548

United States Court of Appeals, Eleventh Circuit.

June 10, 2019

Elizabeth Hecker, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, Stephen Schlessinger, Anne Ruth Schultz, Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Miami, FL, for Plaintiff-Appellee.

Gennaro Cariglio, Jr., Law Office of Gennaro Cariglio Jr., Zeljka Bozanic, Bozanic & Associates, PA, Dennis Gonzalez, Jr., Gonzalez & Herrera, PA, Manuel Fernando Herrera, Quintairos Prieto Wood & Boyer, PA, Miami, FL, for Defendant-Appellant.

Before WILLIAM PRYOR and NEWSOM, Circuit Judges, and ROSENTHAL,^* Chief District Judge.

ROSENTHAL, Chief District Judge:

This was not an easy case for either the prosecution or defense to try. The indictment alleged a scheme to use a government-sponsored program to lure young women students from Kazakhstan to Florida by promising them clerical work in an office. Instead, the students arrived to learn that they had to perform sexual acts for the defendant's paying customers. The government's challenge was that the students had returned to Kazakhstan and refused to testify, requiring the government to use other sources of proof. The defense challenge was that the evidence amply proved guilt. The major issues on appeal are the admissibility and sufficiency of that evidence, the accuracy of the jury instructions, and the application of a sentencing enhancement. We find that no issue presents reversible error, and we affirm.

I. BACKGROUND

In 2016, Jeffrey Cooper was indicted for wire fraud, in violation of 18 U.S.C. § 1343 ; using a facility in interstate and foreign commerce to promote an unlawful activity, in violation of 18 U.S.C. § 1952(a)(3)(A) ; attempting to import and importing an alien for an immoral purpose, in violation of 8 U.S.C. § 1328 ; and attempted sex trafficking and sex trafficking, in violation of 18 U.S.C. §§ 1591(a)(1), 1594(a).

In 2011, Cooper, using a Facebook account for a "Dr. Janardana Dasa," spoke with Diyana Ishmetova, a Kazakhstani travel-agency employee, about hiring Kazakhstani students under the State Department's Summer Work Travel Program. Ishmetova sent Cooper pictures and resumes for four students, XM, DK, BA, and AA. Ishmetova worked with Cooper to fill out the "Self-Arranged Job Offer" forms needed for the students to receive J-1 visas. Ishmetova relayed Cooper's job offers to the Center for Cultural Interchange (CCI), a Program sponsor. Cooper described the jobs in his Facebook messages and on the written offers as "answering phones, doing clerical work, organizing retreats, and making appointments for massage, private yoga, et cetera." The job offers listed "Dr. Janardana Dasa" as the employer and the Bayshore Yacht and Tennis Club apartment complex later linked to Cooper as the location.

CCI called the phone number listed on Cooper's job offers. The man answering the phone identified himself as "Janardana" and confirmed that the students would be doing clerical work for $ 12 per hour and that each would receive housing for $ 70 per week. Cooper told Ishmetova via Facebook that CCI had approved his job offers and that he wanted more foreign students to do "[c]lerical work, computer work, [and to] set[ ] up appointments." Ishmetova, at Cooper's direction, submitted identical job offers for AO and ZR. CCI sponsored J-1 visas for AO, ZR, DK, BA, and XM to work as receptionists at "Janardana's Yoga & Wellness" studio.

Cooper's real business was not yoga. It was selling sexual services to paying clients. Cooper's former employees testified that they gave his male clients erotic massages and had sexual intercourse with them. Cooper ran the business from apartments he leased at the Bayshore Yacht and Tennis Club. The clients would pay Cooper, who would give a percentage to his employees. Cooper booked the clients and used text messages or calls to give instructions to his employees.

Cooper posted advertisements on the website "Backpage" for the sexual services he offered. The IP address listed the subscriber as Jeffrey Cooper, with Dr. Janardana Dasa as an associated name. The advertisements used a phone number ending in 6115, the same number used on the Kazakhstani students' job offers and on Cooper's lease agreements with the Bayshore Yacht and Tennis Club.

On July 12, 2011, a Backpage advertisement posted by Jeff Cooper advertised "travel students" who would give "erotic full body massages" in Miami Beach. An advertisement Cooper had posted a few weeks before AO and ZR arrived offered "exotic full body rubs" and "tantric treatments" from foreign women. Another Backpage advertisement from the same account promised "attractive exchange students" offering "body rubs" in California, for a limited time. Cooper also operated another prostitution business in California, occasionally flying employees from Miami to California.

Cooper used the "Dasa" Facebook account to send AO and ZR Facebook messages about their arrival in Miami. AO and ZR arrived in June 2011. Government investigators and Cooper's former employees testified at Cooper's trial that the students were shocked when they learned that they were in fact hired to perform sexual massages with "happy endings." The students sought replacement jobs and alternative housing that they could afford, without success. Cooper sent Ishmetova a Facebook message complaining that AO and ZR were not cooperating in his business to "provide sensual massages to wealthy clients." Cooper suggested that if the students refused, they would lose their work, their pay, and their housing.

Based on a call from the relative of another exchange student working for "Dasa," CCI became concerned that the students were performing sexual services. CCI contacted "Dasa," using the phone number that was used on Cooper's job offers and on the Backpage advertisements, to ask about the relative's claims. The man answering the phone denied that the students were giving any massages.

Cooper purchased plane tickets for AO and ZR to travel to California in August 2011. Before AO and ZR could leave, a government sting operation removed them from Cooper's business. An undercover detective contacted the number on Cooper's Backpage advertisements. The person who answered told the detective to go to a Bayshore Yacht and Tennis Club apartment. The detective met AO and ZR at the apartment, was told the cost of having sex with them, and paid. Agents then raided Cooper's apartments, finding Cooper's phone, AO's and ZR's belongings, and a business card for "Dr. Janardana Dasa." The phone contained client-contact information and texts directing clients to Cooper's apartments. The government found apartment visitor logs showing about 50 visitors to Cooper's apartments from June 1 to August 4, 2011.

In September 2011, AO cooperated with the government in a monitored call placed to the phone number listed on the Backpage advertisements and on the CCI job offers. AO and ZR then returned to Kazakhstan.

Cooper continued operating his sex business. In October 2012, an undercover agent contacted the 6115 number and talked with Cooper about providing "full service" and "sensually erotic massages." In November 2012, agents carried out another sting operation, with cooperation from one of Cooper's employees. The government detained that employee after she met and negotiated prices with an undercover agent who had made an appointment based on a Backpage advertisement. The employee handed over text messages discussing selling sexual services, sent to and received from the 6115 number. That number was listed in her phone as Janardana's. Cooper told an employee in 2015 that he was operating an erotic massage business in Miami using the 6115 number.

In 2016, government agents went to Cooper's apartment complex to interview Cooper. Cooper admitted that he had represented himself as "Janardana Dasa" and that he had made the CCI job offers in 2011 listing himself as the host employer. Cooper told the agents that he owned and used the "Dr. Janardana Dasa" Facebook account that was used to communicate with Ishmetova. He claimed that AO and ZR "didn't want to do" clerical work for him when they arrived in Miami and were instead taught how to perform sensual massages.

Cooper was arrested in 2016. Electronic devices and a notebook seized during the arrest included information about his prostitution business. Cooper's 2011 bank records showed that he had deposited tens of thousands of dollars in cash and paid at least $ 1,399.96 for Backpage advertisements that year.

A jury convicted Cooper on all counts. The district court sentenced him to 360 months in prison and 60 months on supervised release, and imposed $ 8,640 in restitution. Cooper appealed.

II. DISCUSSION

A. The Evidentiary Rulings

1. The Confrontation Clause and Hearsay

An appellant must adequately brief each issue by "plainly and prominently" raising it. Sapuppo v. Allstate Floridian Ins. Co. , 739 F.3d 678, 681 (11th Cir. 2014) (quoting Cole v. U.S. Att'y Gen. , 712 F.3d 517, 530 (11th Cir. 2013) ). Cooper listed 26 separate hearsay errors, with record cites but no argument or explanation. Cooper did not provide an adequate basis to raise these issues; he failed to preserve his claims of error.

In addition to the briefing deficiency, Cooper admitted on appeal that 14 of his evidentiary-error claims do not involve testimonial statements, meaning that these Confrontation Clause challenges fail as a matter of law. Davis v. Washington , 547 U.S. 813, 821–22, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Only three hearsay and Confrontation Clause issues deserve any discussion. The first two involve Homeland Security Investigations Special Agent Nguyen's testimony about the students' and Ishmetova's mental states and about statements made by men who went to Cooper's apartments to buy...