United States v. Frank Jones

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4534
FRANK JONES,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-98-885)
Submitted: March 20, 2000
Decided: April 4, 2000
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Robert E. Lee, MCINTOSH & LEE, Florence, South Carolina; Debra
O. Jackson, Florence, South Carolina, for Appellant. J. Rene Josey,
United States Attorney, William E. Day, II, Assistant United States
Attorney, Thomas E. Booth, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Frank Jones appeals his conviction and sentence on one count of
mail fraud and attempt to commit mail fraud in violation of 18 U.S.C.
§§ 1341, 2 (1994). On appeal, he contends that the district court erred
by admitting polygraph evidence and by admitting evidence of Jones'
sexual conduct with his employees. Finding no reversible error, we
affirm.
Jones was mayor of the Town of Sellers, South Carolina. The evi-
dence established that Jones arranged for town employees to be paid
for hours they did not work. The employees then gave the money
earned for those hours to Jones. At trial, there was testimony that
Jones told an employee involved in the scheme to refuse to take a
polygraph test if federal investigators asked her to take one. There
was also evidence that Jones told another town employee that he
would take a polygraph test and tell investigators that he was not
aware of an incriminating letter. Furthermore, there was evidence that
Jones abused his position by engaging in sexual misconduct in
exchange for favors and loans.
A district court's evidentiary rulings are reviewed for abuse of dis-
cretion. See United States v. Ruhe, 191 F.3d 376, 387-88 (4th Cir.
1999). We find that the court did not abuse its discretion in admitting
Jones' statements regarding polygraph tests. The results of a poly-
graph test are generally not admissible. See id. ; but see United States
v. A & S Council Oil Co., 947 F.2d 1128, 1134-35 (4th Cir. 1991)
(evidence of the results of a polygraph test were admissible to
uncover the basis for an expert's opinion). Here, however, Jones'
statements were clearly evidence of his consciousness of guilt. More-
over, the statements did not involve the results of a polygraph test, or
allow for an inference of the results of a polygraph test. In addition,
the statements were not used to impeach or bolster the credibility of
a witness.
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We also find that the district court did not abuse its discretion by
admitting evidence of Jones' sexual misconduct with female town
employees. Evidence of other acts "is not admissible to prove the
character of the person." See Fed. R. Evid. 404(b). Such evidence is
admissible, however, to show "proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or acci-
dent." Id. Rule 404(b) is a rule of inclusion. See United States v. Ara-
mony, 88 F.3d 1369, 1377 (4th Cir. 1996). Evidence is admissible
under Rule 404(b) if it is "(1) relevant to an issue other than character,
(2) necessary, and (3) reliable." United States v. Rawle, 845 F.2d
1244, 1247 (4th Cir. 1988) (footnotes omitted). Admissible evidence
must be excluded if the "probative value is substantially outweighed
by the danger of unfair prejudice." Fed. R. Evid. 403.
The evidence of Jones' sexual misconduct was relevant to Jones'
intent to commit mail fraud because it showed his abuse of authority.
The evidence was necessary because it established the context within
which Jones' unlawful conduct occurred. See Aramony, 88 F.3d at
1378 (evidence that defendant charged with fraud used position to
provide an advantage when making sexual advances to employees
was necessary). The evidence was reliable. It was based upon the tes-
timony of witnesses who were subjected to Jones' conduct, and the
evidence was "not so preposterous that it could not be believed by a
rational and properly instructed juror." Id. at 1378.
In addition, the probative value of the evidence was not out-
weighed by unfair prejudice. The court gave the jury a limiting
instruction on the evidence. Furthermore, the nature of the evidence
was not so offensive as to "create a genuine risk that the emotions of
the jury would be excited to irrational behavior." Aramony, 88 F.3d
at 1378.
We affirm the conviction and sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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