United States v. Francis

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

_________________

No. 95-3029
__________________
D. C. Docket No. 93-304-CR-T-23B

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HENRY FRANCIS, JACQUELINE
DENNIS,
Defendants-Appellants.

_____________________

Appeals from the United States District Court
for the Middle District of Florida
____________________

(December 30, 1997)

Before DUBINA, Circuit Judge, and HILL and GIBSON*, Senior Circuit
Judges.

JOHN R. GIBSON, Senior Circuit Judge:

Henry Francis and Jacqueline Dennis appeal their convictions

of conspiring to murder a federal official engaged in and on

account of the performance of his official duty, in violation of 18

U.S.C. §§ 1114 and 1117 (1994), and six counts of using interstate

and foreign commerce facilities in the commission of murder for

*Honorable John R. Gibson, Senior U.S. Circuit Judge for
the Eighth Circuit, sitting by designation.
hire, in violation of 18 U.S.C. § 1958 (1994). Francis also

appeals his conviction of solicitation to commit a crime of

violence, in violation of 18 U.S.C. §§ 373 and 2 (1994). Francis

argues that he was entrapped as a matter of law and that the

district court misapplied the sentencing guidelines. Francis and

Dennis both argue that the district court1 erred in allowing the

government to introduce summaries of wiretapped telephone

conversations. Dennis also argues that the district court erred

in refusing to grant her a severance. We affirm.

On May 10, 1993, Francis and Rendiff Green were arrested for

selling crack cocaine. Shortly thereafter, Green and another

inmate began making arrangements to have a Jamaican Obeah priest

put a voodoo curse on Ernest Hardy, the informant to whom Green and

Francis sold crack. Francis joined the voodoo plot.

In June of 1993, Green began cooperating with government

agents. On August 31, 1993, Green informed the F.B.I. that Francis

had told him that Francis had contacted a Jamaican named "Mauler"

to kill Assistant United States Attorney Kevin Darken, Task Force

Agent Larry Bahnsen, and Hardy, but he had unsuccessfully tried to

call in debts to finance the killings. On September 8, 1993, Green

informed the F.B.I. that Francis said he had recruited some friends

in Jamaica to perform the assassinations because they were

1
The Honorable Steven D. Merryday, United States District
Judge for the Middle District of Florida.

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"cheaper" and more "loyal" than Mauler. In addition, Francis

wanted Green to help him obtain false passports for the Jamaicans.

Francis also asked Green to take pictures of Kevin Darken if Green

were released on bond.

Based on this information, the F.B.I. obtained a warrant to

intercept Francis's telephone conversations originating from his

cell block. Meanwhile, Green agreed to tell Francis that he had a

Jamaican contact who could obtain false passports. Green gave

Francis the telephone number of Miami detective Richard Archie,

telling Francis that Archie had provided Green with false documents

in the past.

On September 29, 1993, Francis contacted Archie. Over the

next two months, Francis and Archie had approximately twenty

telephone conversations.

Initially, Archie agreed to provide four passports to Francis

at $500 each. Francis asked Green to pay for two of the passports,

and Green agreed. After a few conversations with Francis, Archie

expanded his role and offered to assist Franics in ways other than

providing false passports. In the course of a long conversation,

Archie made the following statements to Francis, "[W]hen the

brethren come up, will they need anything?"; "Whatever you want,

me can hook up."; "[M]e know if your brethren come up, they are

going to need some things.... Tool and all those sort of things,

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you know?"; "[M]e have a whole heap of tools2 and things."

Francis replied, "Right, we will need all those things...

They are coming to do certain things for me." Later in the

conversation, Archie stated, "[M]e brought up some brethren ...

(a)bout two months ago... Those boys took care of thing and they

went back down." Francis replied, "Me want to deal with something

like that.... But me only vex because me in here." Archie asked,

"Some little local boys, up there in Tampa?" Francis answered,

"Yeah man, it's them man." Archie replied, "You should have told

me, man, and me would have helped you out already.... All of those

boys don't have to come way up here for that.... They don't have

to come up to do that.... [M]e have some youths who can take care

of a whole heap of things like that." Francis replied, "Alright."

A week later, after the Jamaicans delayed in sending Archie

photographs necessary for Archie to prepare the passports, Francis

stated, "[M]e have to get with them and see what they are dealing

with.... If they are joking around, me will have to make you take

care of certain things for me.... Me will call up the youth, and

find out if they are just joking around, and then me can know what

to tell you, see?"

Four days later, after Archie told Francis that he had still

not received the photographs from the Jamaicans, Francis told

2
Detective Archie testified that, in this conversation,
"tools" is Jamaican patois for guns or firearms.

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Archie, "You probably have to come up here and deal with a thing."

In a later conversation, Archie and Francis discussed how

Francis would have Jacqueline Dennis furnish Archie with an

"address." Francis asked Archie, "You will go on the scene?"

Archie replied, "Yeah man.... But we have to work out the tax

part." Francis then stated, "Me don't know how much because me

much you are going to want for that." Archie replied, "[M]e don't

want you to include my boy Renny part inside that, y'know?....

Because that is taking care of a totally different business."

Francis replied, "Me know, me know." Archie then stated, "The five

piece that you are going to send? Send that for the other part of

this thing here.... And when its done, me will tax you for the

rest." Francis responded, "Alright boss.... Me will send that off

in this week, about Monday.... Or, or you, you want me to wait

until you get those things before me send it?" Archie responded,

"No man, that thing is going to take care of a totally different

thing, you know?" Francis then stated, "That's why me say me will

send that off about Monday, Man." To which Archie replied,

"Alright, and when my man done, when me done with the plumbing part

... me will let you know.... And then me tax you." Francis

responded, "Yeah."

Later, Francis sent Archie $500. In addition, Dennis

telephoned Archie with addresses and telephone numbers for Bahnsen

and Darken.

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 I.

Francis argues that his conviction must be reversed because he

was entrapped as a matter of law. Specifically, Francis argues the

government presented insufficient evidence to prove that he was

predisposed to commit murder.

A valid entrapment defense requires two elements: (1)

government inducement of the crime, and (2) defendant's lack of

predisposition to commit the crime prior to the inducement. See

United States v. Brown, 43 F.3d 618, 623 (11th Cir. 1995) (citing

Mathews v. United States, 485 U.S. 58, 61 (1988). Once the

defendant has produced evidence of inducement, the government must

prove beyond a reasonable doubt that the defendant was predisposed

to commit the crime absent the government's role in assisting such

commission. Id. at 623-24.

Predisposition is a fact intensive inquiry into the

defendant's readiness and willingness to engage in the crime absent

any contact with the government's officers or agents. Id. at 624-

25. The government may not implant in an innocent person's mind

the disposition to commit a crime, and then induce the person to

commit the crime so it may prosecute. See Jacobson v. United

States, 503 U.S. 540, 548 (1992) (citing Sorrells v. United States,

287 U.S. 435, 442 (1932)).

The jury rejected Francis's claim that he was entrapped. When

a jury rejects an entrapment defense, our review is limited to

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determining whether the government presented sufficient evidence

for a reasonable jury to conclude that the defendant was

predisposed to take part in the crime. See Brown, 43 F.3d at 622.

Review is de novo, but we view all evidence and make all inferences

in favor of the government. Id. Furthermore, we cannot overturn

the jury's verdict if any reasonable construction of the evidence

would allow the jury to find the defendant guilty beyond a

reasonable doubt. Id.

After thorough study of the record, we conclude the evidence,

viewed in the light most favorable to the government, was

sufficient for a reasonable jury to find that Francis was ready and

willing to commit the crime absent any contact with the government.

Green testified that Francis first raised the topic of murdering

Bahnsen, Darken, and Hardy and had attempted to hire Mauler to

perform the assassinations. Green also testified that Francis,

before being introduced to Archie, communicated with the Jamaicans

about performing the murders, asked Green to get passports for his

Jamaican associates, and asked Green to take pictures of one of the

intended targets if Green were released on bond.

The evidence supports the conclusion that the government did

not implant in Francis's mind the disposition to murder Bahnsen,

Darken, and Hardy. Although Green and Archie assisted Francis, and

Archie offered his services as an assassin, the government did not

initiate the assassination plot. Rather, the government merely

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provided Francis with a method of accomplishing the crime. "[T]he

fact that officers or employees of the Government merely afford

opportunities or facilities for the commission of the offense does

not defeat the prosecution. Artifice and stratagem may be employed

to catch those engaged in criminal enterprises." Jacobson, 503

U.S. at 548 (quoting Sorrells, 287 U.S. at 441). We reject

Francis's entrapment argument.

II.

Francis also makes two arguments related to his sentence.

First, Francis argues that the district court clearly erred in

finding that Francis offered "something of pecuniary value" in

exchange for murder, resulting in a four level enhancement of his

offense level pursuant to USSG § 2A1.5(b)1 (1997). Second, Francis

argues that the district court clearly erred in finding that there

were two intended victims of the conspiracy plot. Francis claims

that the evidence supports a finding that Bahnsen, and not Darken,

was the only intended victim. Therefore, Francis claims that he

should not have been sentenced on the basis of two grouped counts

resulting in a two level enhancement pursuant to USSG §§ 1B1.2 and

3D1.4 (1997).3

3
Section 1B1.2(d) states, "A conviction on a count charging
a conspiracy to commit more than one offense shall be treated as
if the defendant had been convicted on a separate count of
conspiracy for each offense that the defendant conspired to
commit." Section 3D1.4 provides that the offense level should be
increased based on the number of "separate" conspiracies or
"units."

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 In sentencing, we review the district court's factual findings

for clear error, and its application of those facts to the

Sentencing Guidelines de novo. See United States v. Shenberg, 89

F.3d 1461, 1473 (11th Cir. 1996), cert. denied, 117 S.Ct. 961

(1997). The government must prove the facts used in sentencing by

a preponderance of the evidence. Id. at 1476.

Francis sent Detective Archie $500 and Archie testified that,

based on his telephone conversations with Francis outlined above,

he understood the $500 to be a down payment from Francis for Archie

to commit the murders. After reviewing the conversations and

Archie's testimony, we conclude the district court did not clearly

err in finding that Francis offered something of pecuniary value in

exchange for murder.

Similarly, ample evidence exists to support the district

court's finding that Francis intended to kill both Bahnsen and

Darken. Green testified that Francis repeatedly spoke to Green

about killing both Bahnsen and Darken. In addition, Archie

testified that, based on his conversations with Francis and Dennis,

Francis wanted both Bahnsen and Darken killed. Furthermore,

Darken's wife testified that she received a telephone call from a

person threatening to kill Darken. And finally, Dennis, at

Francis's direction, conveyed information to Archie about both

Darken and Bahnsen. The district court did not clearly err in

finding that there were two intended victims of the conspiracy.

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 III.

Francis and Dennis both argue that the district court erred in

allowing the government to introduce summaries of the wiretapped

telephone conversations. We review the district court's admission

of summaries for an abuse of discretion. See United States v.

Massey, 89 F.3d 1433, 1440 (11th Cir. 1996), cert. denied, 117

S.Ct. 983 (1997).

Because Francis conducted his conversations in Jamaican

patois,4 the government had FBI Agent Wilfred Rattigan prepare

translated transcripts of the tape recorded conversations. From

the translations, Rattigan prepared summaries of the taped

conversations.

At trial, the district court accepted Agent Rattigan as an

expert in Jamaican patois and allowed Rattigan to testify

concerning the contents of the intercepted conversations. In

general, when testifying about a particular conversation, the

government would first admit Rattigan's prepared summary of the

conversation, which would be displayed as an exhibit before the

jury. Rattigan would then read to the jury his prepared summary.

Next, the court would admit the exhibit containing the translated

transcript of the intercepted telephone conversation, and then play

4
According to Agent Wilfred Rattigan, Jamaican patois is
approximately eighty percent English, but also contains West
African, Portuguese, French and Spanish words, with the words
arranged in a different order than in standard English.

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the tape for the jury. The court admitted and made available to

the jury all taped conversations, although some summaries and

transcripts were introduced without playing the accompanying tape.

Appellants first argue that the district court erred in

admitting summaries of the translated conversations in lieu of

playing all the taped conversations for the jury. We reject this

argument.

Rule 1006 of the Federal Rules of Evidence specifically

provides that the contents of voluminous recordings which cannot

conveniently be examined in court may be presented in the form of

a summary. Fed. R. Evid. 1006. Rule 1006 allows the district court

to admit the summaries as evidence where, in the court's

discretion, it would be inconvenient or unnecessarily time-

consuming to play every taped conversation for the jury. See United

States v. Clements, 588 F.2d 1030, 1039 (5th Cir. 1979);5 United

States v. Smyth, 556 F.2d 1179, 1184 (5th Cir. 1977). To prevent

the necessity of playing all seventy-six conversations in their

entirety, the court exercised its discretion and admitted the

summaries into evidence. This was not an abuse of discretion.

Appellants also argue that the summaries were argumentative

and arranged to further the prosecution's position, thus

5
Decisions of the Fifth Circuit rendered prior to October 1,
1981, are binding precedent in the Eleventh Circuit until
overruled by the Eleventh Circuit sitting en banc. Bonner v.
City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

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prejudicing appellants' case.

First, we observe that neither Francis nor Dennis, whose

briefs are worded identically on this point, directed the court to

any specific argumentative summaries. This is in clear violation

of F.R.A.P 28(a)(4), and 28 (e). The burden of proof is on the

appellant, and this court is not required to search the forty-

volume transcript and numerous exhibits for error. See United

States v. Lynn, 608 F.2d 132, 135 (5th Cir. 1979).

Nevertheless, we recognize the potential prejudice of undue

editorializing when the government prepares summaries from

translations of tape recordings. Therefore, despite the lack of

guidance from appellants, we have compared a number of the

government prepared summaries with the transcripts of the tape

recordings and conclude that the ones examined are neither

argumentative nor unfair.

Some of the summaries are likely based on assumptions

favorable to the government. These assumptions are allowed "so

long as supporting evidence has been presented previously to the

jury ... and where the court has 'made it clear that the ultimate

decision should be made by the jury as to what weight should be

given to the evidence.'" United States v. Means, 695 F.2d 811, 817

(5th Cir. 1983) (citing United States v. Diez, 515 F.2d 892, 905

(5th Cir. 1975), and quoting United States v. Andrew, 606 F.2d 549,

550 (5th Cir. 1979)). See also Myers v. United States, 356 F.2d

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469 (5th Cir. 1966) (government not obligated to include the

appellant's version of the facts in its summary exhibit); Massey,

89 F.3d at 1441, n.9 (Rule 1006 does not require the fact finder to

accept the information presented in the summaries as true). Here,

supporting evidence, such as Green's testimony, Archie's testimony,

and the actual taped conversations were before the jury.

In addition, the district court repeatedly instructed the jury

that the summaries were the government's contentions of the

contents of the tapes and that the jury was the ultimate judge of

the accuracy of the summaries. When admitting the summaries, the

court instructed the jury that they were prepared by Agent

Rattigan, that the actual recordings were in evidence and available

to the jury, and that the recordings were the primary and governing

evidence of the contents of the conversations. The court further

explained that the summaries were intended to help explain or

summarize, or at least speed along, the explanation of the contents

of the tapes, and were for the jury's convenience. The court

instructed the jury that the court neither accepted nor rejected

the summaries and that the summaries did not represent the court's

conclusion about the content of the tapes. The court emphasized

that if the summaries in any way did not accurately reflect the

contents of the conversations, the jury should disregard them. The

court repeated these instructions on numerous occasions during the

presentation of evidence. These cautionary instructions limited

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any possible prejudice to appellants from the summaries.

Furthermore, any possible prejudice was neutralized by

appellants' extensive cross-examination of Agent Rattigan

concerning his knowledge of Jamaican patois and his meaning and

preparation of the summaries. In addition, Francis testified as to

his interpretation of the taped conversations. Under these

circumstances, we conclude the court did not abuse its discretion

in admitting the government-prepared summaries into evidence.

IV.

Dennis argues that the district court erred by denying her

motion to sever her trial. Dennis argues that she was severely

prejudiced by the government's presentation of Francis's prior drug

activity and because the evidence against her was small as compared

to Francis.

We have consistently held that persons who are charged

together as co-conspirators should be tried together. See United

States v. Knowles, 66 F.3d 1146, 1158 (11th Cir. 1995). In

considering a motion to sever, the district court must determine

whether the prejudice inherent in a joint trial outweighs the

public's interest in judicial economy. See United States v. Saget,

991 F.2d 702, 707 (11th Cir. 1993).

To establish that the district court abused its discretion in

refusing to sever, the defendant must demonstrate that the joint

trial resulted in specific and compelling prejudice to her defense.

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Id. This is done by showing that the jury was unable to make an

individualized guilt determination for each defendant. Id. "This

is a heavy burden, and one which mere conclusory allegations cannot

carry." United States v. Hogan, 986 F.2d 1364, 1375 (11th Cir.

1993). In addition, "cautionary instructions to the jury to

consider the evidence separately are presumed to guard adequately

against prejudice." United States v. Gonzalez, 940 F.2d 1413, 1428

(11th Cir. 1991).

Dennis has offered only conclusory allegations of compelling

prejudice. She has not demonstrated how the government's

presentation of evidence concerning Francis's prior drug activities

affected the jury's ability to make an individualized determination

of her guilt. Furthermore, compelling prejudice does not exist

merely because much of the evidence at trial applies only to a co-

defendant. United States v. Smith, 918 F.2d 1501, 1510 (11th Cir.

1990). The district court minimized any possible prejudice by

instructing the jury to consider the evidence against Francis and

Dennis separately. The district court did not abuse its discretion

in denying Dennis's severance motion.

V.

For the foregoing reasons, the judgment of the district court

is AFFIRMED.

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