UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4661
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAIR FRANCIS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:05−cr−00451−AW−4)
Argued: March 26, 2009 Decided: May 18, 2009
Before MOTZ and AGEE, Circuit Judges, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Robert Charles Bonsib, MARCUS & BONSIB, Greenbelt,
Maryland, for Appellant. Chan Park, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, Gina L.
Simms, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jair Francis was convicted by a jury of one count of
conspiring to violate the Mann Act, 18 U.S.C. § 371 (“Count
One”), one count of conspiracy to harbor illegal aliens, 8
U.S.C. § 1324(a)(1)(A)(v)(I) (“Count Two”), and one count of
aggravated identity theft, 18 U.S.C. § 1028A(a)(1) (“Count
Six”). He was sentenced to concurrent 20-month terms of
imprisonment on Counts One and Two and a mandatory minimum,
consecutive 24-month term of imprisonment on Count Six. He
appeals the district court’s admission of certain evidence
during his trial and the reasonableness of his sentence. We
affirm the judgment of the district court for the reasons set
forth below.
I.
Elsy Yolanda Aparicio operated a brothel from an apartment
in the Georgian Woods apartment complex (“Georgian Woods” or
“the complex”) in Wheaton, Maryland. 1 In 2003, Jair Francis, a
leasing consultant at the complex, approached her with a
1
This brothel was but one of several operated by the
Aparicio family. Elsy was joined in this enterprise by her
brother, Eliazor “Lito” Gonzales Aparicio; her sister, Dorinalda
Marlene Aparicio; their aunt, Rosibel Aparicio Jandres;
Rosibel’s husband, Manuel Jandres; and Elsy’s husband, Jonathan
“Jorge” Lopez. We refer to these family members by their first
names.
2
proposition: he informed her that the complex management knew
she ran a brothel from the apartment and he offered to move her
to a new apartment and notify her of any police inquiries at the
rental office in exchange for $150 per week in addition to the
monthly rent. Elsy accepted Francis’ proposition and made the
weekly payments. She also allowed Francis to avail himself of
the prostitutes’ services for free.
Some months later, Elsy encouraged Eliazor to contact
Francis about opening a second brothel at Georgian Woods.
Eliazor did so, and Francis demanded $2000 to arrange for a
second apartment, initially located at 2209 Shorefield Road #711
(“Apartment 711”). Like Elsy, Eliazor paid Francis $150 per
week in addition to the monthly rent and allowed Francis free
access to the prostitutes.
In January 2004, unbeknownst to Francis and the Aparicios,
police began investigating Eliazor’s brothel based on
information from a confidential informant. As the investigation
progressed, Detective Leland Wiley met with Francis and the
complex’s assistant manager, Shannon Cooper, and asked them to
watch for suspicious activity relating to Apartment 711.
Francis notified Eliazor of Detective Wiley’s investigation and
arranged to move his brothel to a new apartment, located in the
complex at 2217 Shorefield Road #513 (“Apartment 513”).
3
Unfortunately for them, however, Wiley observed men moving
furniture from Apartment 711 to Apartment 513. 2
His curiosity piqued, Wiley asked Cooper why the tenant in
Apartment 711 would move to another apartment in the same
complex. Cooper consulted the complex’s computer records and
determined that the tenant, listed as Gayle Arrington, was being
evicted from Apartment 711 for non-payment of rent. However,
when Cooper checked the physical file for that apartment, it
contained only Arrington’s credit report; there was no executed
lease agreement. There was no agreement because Arrington never
leased Apartment 711.
Arrington had innocently contacted Georgian Woods in
November 2003, while preparing to move from New Jersey to
Maryland. She spoke with Francis and faxed him a rental
application. Francis obtained Arrington’s credit report and
told her that the application was approved. Arrington
ultimately changed her mind and never signed a lease or moved
into the complex. Nevertheless, Arrington later found a claim
by Georgian Woods for unpaid rent on her credit report.
In May 2005, unrelated to Wiley’s investigation, New Jersey
state police stopped a van registered to Manuel Jandres on the
2
Police subsequently raided Apartment 513, whereupon
Francis supplied Eliazor with yet a third apartment.
4
New Jersey Turnpike near Newark. The van contained thirteen
female passengers and was one of two the Aparicio prostitution
ring used to transport women from New York and New Jersey to
Maryland to work in their brothels. The New Jersey state police
brought in federal authorities, including a United States
Immigration and Customs Enforcement (“ICE”) agent who determined
that at least two of the women were in the country illegally.
In September 2005, Georgian Woods was sold. In reviewing
the complex’s books in preparation for the sale, Cooper detected
that Francis had mishandled rent receipts and altered computer
records. Cooper presented her discoveries to David Brocklebank,
the complex’s manager. When confronted by Brocklebank, Francis
produced a stash of checks and money orders he had secreted in
his desk in violation of company policy. Brocklebank promptly
fired him.
In June 2006, Francis was indicted along with other members
of the Aparicio prostitution ring. Count One and Count Two of
the indictment, principally based on the May 2005 traffic stop
in New Jersey, alleged that Francis and others conspired to
transport individuals in interstate commerce and harbor illegal
aliens. Count Six alleged that Francis had stolen Arrington’s
identity to conceal the operation of a brothel from Apartment
711.
5
At trial, Brocklebank provided and testified about a rent
roll produced from the complex’s computer records. The rent
roll showed information about every unit in the complex,
indentifying the tenant and summarizing lease information.
Brocklebank testified that the rent roll for January 2004 named
Arrington as the tenant in Apartment 711, and additional
documents showed arrearages in her account of $2,702.88.
Francis objected to the introduction of and testimony about the
rent roll. In addition, Brocklebank testified that he had fired
Francis for the mishandling of rent payments. Francis also
objected to the testimony about his termination. Finally,
Francis’ co-defendant objected to testimony concerning the
immigration status of the female passengers in the van during
the May 2005 traffic stop. All of these objections were
overruled. 3
Francis was convicted by a jury on all counts. The
presentence report (“PSR”) calculated his offense level as 19
with criminal history category I, resulting in a guidelines
range of 30-37 months on Count One and Count Two plus 24 months
as a mandatory minimum, consecutive sentence on Count Six--a
3
Francis also filed Rule 29 motions for judgment of
acquittal on Count One and Count Two asserting that the evidence
was insufficient to prove his culpability. Francis does not
appeal from the denial of those motions.
6
total of 54-61 months. Francis objected to the PSR, arguing
that the Government had not proved that there were 5 or more
victims for a sentence enhancement on Count One. Francis also
argued that he qualified for a downward adjustment under § 3B1.2
of the Sentencing Guidelines and a downward departure under §
5K2.0.
The Government opposed the objections and the district
court overruled them. Nevertheless, after considering the
factors in 18 U.S.C. § 3553(a), the district court sentenced
Francis to only 20 months’ imprisonment on Count One and Count
Two, to run concurrently, and to 24 months’ imprisonment on
Count Six, to run consecutively--a total of 44 months.
Francis filed a timely notice of appeal and we have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
II.
Francis appeals from three of the district court’s
evidentiary rulings: the admission of the rent roll and
Brocklebank’s related testimony, the admission of Brocklebank’s
testimony about his termination, and the admission of testimony
about the van passengers’ immigration status. Francis also
challenges his sentence, contending the evidence is insufficient
to support the district court’s finding of 5 or more victims on
Count One, that the district court erred in denying a downward
7
adjustment under § 3B1.2 and a downward departure under § 5K2.0
of the Sentencing Guidelines, and that the sentence is
unreasonable under Gall v. United States, 128 S. Ct. 586 (2007),
and United States v. Pauley, 511 F.3d 468 (4th Cir. 2007).
A.
We first consider Francis’ evidentiary arguments. This
Court “review[s] rulings concerning the admission of evidence
for abuse of discretion.” United States v. White, 405 F.3d 208,
212 (4th Cir. 2005).
1.
In his opening brief, Francis argued the rent roll was a
summary exhibit offered under Federal Rule of Evidence 1006 but
that he did not have access to source data from which it was
compiled as required by that rule. See Fed. R. Evid. 1006 (“The
originals, or duplicates, [of evidence from which summaries are
created] shall be made available for examination or copying, or
both, by other parties at [a] reasonable time and place.”)
Francis abandoned this position at oral argument and conceded
that the rent roll was a business record, but asserted that
Brocklebank was not qualified to authenticate it.
Authenticated business records are excepted from the
hearsay rule under Federal Rule of Evidence 803(6). The rule
8
requires that “the testimony of the custodian or other qualified
witness” establish that the record was “kept in the course of a
regularly conducted business activity, and [that] it was the
regular practice of that business activity to make” the record.
Fed. R. Evid. 803(6). Brocklebank testified that rent rolls
were kept as part of the regular course of the complex’s
business and that he himself used them in the regular course of
his duties. Accordingly, Brocklebank was a qualified witness to
authenticate the rent roll and the district court did not abuse
its discretion by admitting it as evidence.
2.
Francis argues that Brocklebank’s testimony that he fired
Francis for withholding tenants’ rent and utilities payments
contrary to company policy was improper bad act evidence
admitted in violation of Federal Rule of Evidence 404(b) and
that its prejudicial effect outweighed its probative value in
violation of Rule 403. Francis submits that the testimony
implied that he intended to embezzle the payments and did
nothing to prove that he falsified computer records--i.e.,
adding Arrington to the rent roll--because each of the withheld
payments had been recorded in the computer system. We disagree.
Bad acts evidence may be admitted either under the
intrinsic act doctrine or Rule 404(b). The intrinsic act
9
doctrine allows evidence of bad acts to be admitted if the acts
“arose out of the same series of transactions as the charged
offense, or if [the evidence] is necessary to complete the story
of the crime on trial.” United States v. Kennedy, 32 F.3d 876,
885 (4th Cir. 1994) (internal quotation marks and alterations
omitted). “Other criminal acts are intrinsic when they are
inextricably intertwined or both acts are part of a single
criminal episode or the other acts were necessary preliminaries
to the crime charged.” United States v. Chin, 83 F.3d 83, 88
(4th Cir. 1996) (internal quotation marks omitted).
Alternatively, bad acts not intrinsic to the charged
offense may be admitted under Rule 404(b). United States v.
Siegel, 536 F.3d 306, 315-16 (4th Cir. 2008) (citing Chin, 83
F.3d at 87-88); see also United States v. Tedder, 801 F.2d 1437,
1444 (4th Cir. 1986). In United States v. Queen, 132 F.3d 991
(4th Cir. 1997), we held that Rule 404(b) is a rule of inclusion
that permits the admission of extrinsic bad act evidence “with
only the one stated exception”--i.e., character evidence. 132
F.3d at 994-95. Therefore:
evidence of prior 4 acts becomes admissible under Rules
404(b) and 403 if it meets the following criteria: (1)
4
There is no distinction between “prior” bad acts and
“subsequent” bad acts for the purposes of the rule, which speaks
only of “other” bad acts. See Fed. R. Evid. 404(b); see also
United States v. Hadaway, 681 F.2d 214, 217-18 (4th Cir. 1982)
(Continued)
10
The evidence must be relevant to an issue, such as an
element of an offense, and must not be offered to
establish the general character of the defendant. . .
. (2) The act must be necessary in the sense that it
is probative of an essential claim or an element of
the offense. (3) The evidence must be reliable. And
(4) the evidence's probative value must not be
substantially outweighed by confusion or unfair
prejudice in the sense that it tends to subordinate
reason to emotion in the factfinding process.
Id. at 997 (footnote added).
In this case, the Government argues that Brocklebank’s
testimony is evidence intrinsic to Count Six because it provides
contextual information about how Francis was able to conceal his
falsification of Arrington’s tenancy, and, alternatively, that
the evidence was admissible under Rule 404(b).
There is no inherent nexus between withholding tenants’
payments and misappropriating Arrington’s identity to create the
false appearance of a lease for Apartment 711. The withheld
payments were not discovered until September 2005, some 18
months after Cooper discovered there was no lease for Apartment
711. There is no evidence in the record that Francis withheld
payments at the time he fabricated Arrington’s lease or that he
withheld payments throughout the 18-month period. There is no
evidence that Francis converted or intended to convert the
("[I]t is immaterial whether the instances are found occurring
before or after the act charged.").
11
checks and money orders to his own use or that the withheld
payments were for the apartments used as brothels. Thus,
Brocklebank’s testimony about the withholding of rent and
utilities payments is not inextricably intertwined with the
crime charged so as to be admissible under the intrinsic act
doctrine.
Nevertheless, the district court did not abuse its
discretion in admitting the testimony under Rule 404(b).
Brocklebank testified that Francis recorded payments in the
computer system but did not turn them over to be deposited in
the Georgian Woods account. Such testimony is relevant to and
probative of Francis’ ability to create inaccuracies in the
complex’s business records consistent with creating false
records of Arrington’s tenancy. Brocklebank’s testimony about
the discrepancies is reliable both because he testified that he
saw the inaccurate computer records himself, confronted Francis
with them, and Francis then physically presented him with the
withheld payments, and because Cooper corroborated his
testimony. Nor did admitting the evidence offend Rule 403
because the testimony was unlikely to confuse the jury, and it
was not so inflammatory as to subordinate reason to emotion.
Accordingly, there is no reversible error in the admission of
the testimony.
12
3.
Francis argues that the ICE agent’s testimony about the
immigration status of the women riding in the van stopped on the
New Jersey Turnpike was inadmissible hearsay, because the agent
never spoke to the women and merely relied on reports of other
law enforcement officials that were not introduced into
evidence. In addition, the agent testified about information he
found in databases, rather than producing the records
themselves.
The Government asserts that Francis failed to object to the
testimony at trial and that we should review this claim for
plain error. We agree. The only objection made during the ICE
agent’s testimony came from Francis’ co-defendant, who did not
state a ground for the objection. Francis argues that his co-
defendant’s objection should be attributed to him even though he
did not affirmatively join in it.
While some circuits permit an appellant to present an issue
for review although the issue was preserved below only by the
objection of a non-appellant co-defendant, e.g., United States
v. Garcia, 291 F.3d 127, 140 (2d Cir. 2002) (“the objection of a
co-defendant is an objection for all defendants, and it is
sufficient to preserve the issue for appeal”), Francis cites no
supporting authority for that position in this Circuit. It is
unnecessary to address that issue, however, because the
13
objecting co-defendant in this case failed to state a ground for
his objection. Therefore, he did not preserve a hearsay
objection for anyone. 5 Consequently, we review this issue only
for plain error.
To prevail on plain error review, a defendant
must demonstrate (1) that an error occurred, (2) that
the error was plain, and (3) that it affected his
substantial rights. If the defendant satisfies these
threshold requirements, correction of the error is
within our discretion, which is appropriately
exercised only when failure to do so would result in a
miscarriage of justice, such as when the defendant is
actually innocent or the error seriously affect[s] the
fairness, integrity or public reputation of judicial
proceedings.
United States v. Farrior, 535 F.3d 210, 222 n.4 (4th Cir. 2008)
(internal quotation marks omitted) (alteration in original). In
this case, Francis has not met his burden to show prejudice
because other evidence established that some of the prostitutes
were illegal aliens transported across state lines. For
example, one of the prostitutes, Flores Rangel, testified that
she was an illegal alien from Mexico who traveled between New
York and Maryland in one of Manuel Jandres’ vans. Eliazor and
Elsy both testified that many of their prostitutes were illegal
5
The Federal Rules of Evidence require a party objecting
to the admission of evidence to state the grounds for his
objection. Fed. R. Evid. 103(a); see also Chin, 83 F.3d at 87
(4th Cir. 1996) (requiring objections to be made both timely and
stating specific grounds).
14
aliens, and Eliazor and Manuel testified that the white vans
shuttled prostitutes between New York, New Jersey, and Maryland.
Accordingly, Francis does not prevail under plain error review.
B.
We next turn to Francis’ challenge to the sentence
imposed by the district court. “We review a district court’s
sentence under an abuse of discretion standard for procedural
reasonableness.” United States v. Martinez-Varela, 531 F.3d
298, 299 (4th Cir. 2008). “[W]hen considering a sentence’s
reasonableness, we ‘review the district court’s legal
conclusions de novo and its factual findings for clear error.’”
United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir. 2008)
(quoting United States v. Hampton, 441 F.3d 284, 287 (4th Cir.
2006)). We “then consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.” Gall,
128 S. Ct. at 597.
1.
Francis argues that his sentence is unreasonable because
there was insufficient evidence to support the district court’s
application of a five-level enhancement under § 2G1.1 of the
Sentencing Guidelines, which requires more than five victims.
He contends the only evidence that there were more than five
15
victims on Count One is the ICE agent’s testimony that the van
stopped on the New Jersey Turnpike carried thirteen female
passengers, and that testimony was inadmissible hearsay. This
argument is without merit.
The formal rules of evidence do not apply to sentencing and
reliable hearsay evidence may be considered. United States v.
Jones, 31 F.3d 1304, 1316 (4th Cir. 1994) (citing Fed. R. Evid.
1101(d)(3) and U.S. Sentencing Guidelines Manual § 6A1.3). The
reliability of the ICE agent’s testimony is bolstered by Eliazor
and Manuel’s testimony that the prostitution ring operated two
passenger vans to shuttle the prostitutes between New Jersey,
New York, and Maryland. Thus, the district court did not commit
clear error in finding the sentence enhancement applied.
2.
Francis next contends the district court erred in denying a
minimal or minor role downward adjustment under § 3B1.2 of the
Sentencing Guidelines, because he was unaware of the scope and
structure of the Aparicio prostitution ring. We disagree.
Application Note 4 to § 3B1.2 states: “It is intended that
the downward adjustment for a minimal participant will be used
infrequently.” Moreover,
mitigating role adjustments apply only when there has
been group conduct and a particular defendant is less
culpable than other members of the group to such a
16
degree that a distinction should be made at sentencing
between him and the other participants. However,
whether a role in the offense adjustment is warranted
is to be determined not only by comparing the acts of
each participant in relation to the relevant conduct
for which the participant is held accountable, but
also by measuring each participant’s individual acts
and relative culpability against the elements of the
offense of conviction.
United States v. Pratt, 239 F.3d 640, 646 (4th Cir. 2001)
(internal citations and quotation marks omitted).
In this case, Francis entered the conspiracy at his own
initiative when he approached Elsy and demanded continuing
payments to conceal her Georgian Woods brothel. When Eliazor
sought to expand the ring’s operations at Georgian Woods,
Francis demanded an upfront fee to obtain a new apartment and
continuing payments to conceal its use. Francis also sought and
received the services of the prostitutes for free. Thus, the
district court found not only that Francis was “handsomely paid”
for his role but that, without his participation, “the
pervasiveness of this conspiracy would not have been as wide.”
(J.A. 417.) We agree. Because Francis initiated his role in
the conspiracy and continued it for several months, and because
that role was to conceal the existence of the conspiracy, we
find no error in the district court’s denial of a minimal or
minor role downward adjustment.
17
3.
Francis also claims the district court erred in denying a
downward departure under § 5K2.0 of the Sentencing Guidelines,
because as an alien subject to deportation he would be subject
to harsher conditions of confinement and a period of
administration detention upon release. We have previously held
that 18 U.S.C. § 3742(a) does not permit a defendant to
challenge the district court’s denial of a downward departure
unless the district court erroneously determined the defendant
was not entitled to a downward departure as a matter of law.
United States v. Bayerle, 898 F.2d 28, 30 (4th Cir. 1990).
There was no question in this case that the district court
had authority to grant a downward departure, and the Government
even conceded that point. Rather, the district court determined
that Francis had not met his burden of proving that his
immigration status would result in harsher conditions of
confinement or administration detention upon release. “The
court knew that it could depart. It refused because it concluded
that the evidence did not justify departure.” Bayerle, 898 F.2d
at 31. Accordingly, Francis may not challenge the district
court’s refusal on appeal.
18
4.
Finally, Francis argues that the district court was too
rigid in its calculation of his sentence: essentially, because
he was sentenced before the decisions in Gall and Pauley, the
district court was necessarily too reluctant to stray from the
guidelines range and his sentence is therefore unreasonable. We
disagree.
Verifying correct calculation of the sentencing guidelines
range is the first step in determining whether a defendant’s
sentence is reasonable, Pauley, 511 F.3d at 473, but finding
that the guidelines range was calculated correctly does not
complete our review for reasonableness. We must also verify
that the district court did not commit other procedural error,
“such as . . . failing to consider the [18 U.S.C.] § 3553(a)
factors . . . or failing to adequately explain the chosen
sentence--including an explanation for any deviation from the
Guidelines range.” Gall, 128 S. Ct. at 597. Finally, after
finding “the district court’s sentencing decision is
procedurally sound, [we] then consider the substantive
reasonableness of the sentence imposed under an abuse-of-
discretion standard.” Id.; accord Pauley, 511 F.3d at 473. “In
reviewing the substantive reasonableness of the sentence, we may
consider ‘the extent of the deviation,’ but we ‘must give due
deference to the district court's decision that the § 3553(a)
19
factors, on a whole, justify the extent of the variance.’”
Pauley, 511 F.3d at 473-74 (quoting Gall, 128 S. Ct. at 597).
That the district court sentenced Francis prior to the
decisions in Gall and Pauley reflects merely the caprice of
chronology rather than any defect in the sentence itself. To
determine whether a sentence is reasonable, we examine how the
district court arrived at it, not when it was imposed. We have
already determined that the district court did not err in
calculating the applicable sentencing guidelines range. After
reviewing the record, we find the district court both properly
considered the § 3553(a) sentencing factors and explained its
decision to sentence Francis to 20 months’ imprisonment on Count
One and Count Two--ten months less than the applicable
guidelines range. 6
After calculating the guidelines range, the district court
did not merely presume that the guidelines sentence was
reasonable. Rather, it heard argument from each party, the
testimony of four witnesses, and a statement from Francis
himself during the sentencing hearing. The district court then
explained that its sentencing analysis considered the nature of
the offenses and their effect on society, Francis’ own criminal
6
The district court had no discretion with regard to the
mandatory minimum, consecutive sentence on Count Six.
20
history, the effect of the sentence in protecting the public and
deterring Francis from future criminal conduct, the disparity in
Francis’ sentence and the sentences of his co-conspirators, the
effect of his incarceration on Francis’ family, Francis’ health,
and the underlying public policy.
As a result of its careful consideration, the district
court imposed a sentence one-third shorter than the low end of
the applicable guidelines range. The sentence may not be one we
would impose on Francis but, having found no procedural error in
the district court’s analysis and giving due deference to the
district court that the § 3553(a) factors justify the variance,
see Pauley 511 F.3d at 473-74, we hold that it is reasonable and
based on the § 3553(a) factors. Accordingly, the district court
did not abuse its discretion.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
21