United States v. Francis , 131 F.3d 1452 ( 1997 )

United States Court of Appeals,
Eleventh Circuit.
No. 95-3029.
UNITED STATES of America, Plaintiff-Appellee,
v.
Henry FRANCIS, Jacqueline Dennis, Defendants-Appellants.
Dec. 30, 1997.
Appeals from the United States District Court for the Middle District of Florida. (No. 93-304-CR-T-
23B), Steven D. Merryday, Judge.
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 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.
*
Honorable John R. Gibson, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by
designation.
1
The Honorable Steven D. Merryday, United States District Judge for the Middle District of
Florida.
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 "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 Francis 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,
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 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
2
Detective Archie testified that, in this conversation, "tools" is Jamaican patois for guns or
firearms.
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.
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, 108 S.Ct. 883, 885-86, 99 L.Ed.2d 54 (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, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 174 (1992) (citing Sorrells v. United States, 287
U.S. 435, 442, 53 S.Ct. 210, 212-13, 77 L.Ed. 413 (1932)).
The jury rejected Francis's claim that he was entrapped. When a jury rejects an entrapment
defense, our review is limited to 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 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, 112
S.Ct. at 1540 (quoting Sorrells, 287 U.S. at 441, 53 S.Ct. at 212). 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 U.S.S.G.
§ 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 U.S.S.G. §§ 1B1.2 and 3D1.4 (1997).3
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, --- U.S. ----, 117 S.Ct. 961, 136 L.Ed.2d 847 (1997).
The government must prove the facts used in sentencing by a preponderance of the evidence. Id.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."
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.
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, --- U.S. ----, 117 S.Ct. 983, 136 L.Ed.2d 865 (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.
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.
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 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 prejudicing appellants' case.
First, we observe that neither Francis nor Dennis, whose briefs are worded identically on
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).
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 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 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.
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.