Decided: May 29, 2013
Affirming the United States District Court for the Eastern District of Virginia, the Fourth Circuit held that the district court properly admitted certain hearsay statements made by the defendant’s cousin and uncle over prison telephone calls, properly impaneled a juror with alleged ideological biases, properly grouped only one of the defendant’s two witness tampering counts with his aiding and abetting false claims counts, and properly calculated the total loss wrought by the defendant’s fraudulent scheme.
Jermar Jones, a former Navy serviceman, orchestrated fraudulent marriages involving several of his shipmates. Between 2006 and 2008, Jones and a codefendant would arrange marriages between the sailors and foreign nationals. As a result of these fraudulent arrangements, the sailor would receive a monthly stipend to support his spouse, the foreign national would gain the opportunity to become a permanent U.S. resident, and Jones would receive a fee from the foreign spouse or “back pay” from sailor—that is, funds received during the period between the marriage and the stipend’s commencement. After the Naval Criminal Investigative Service (NCIS) began investigating the marriages, Jones intimidated other participants in the scheme, urging them not to cooperate with the investigation.
A grand jury issued an eleven-count indictment against Jones, including with three counts of aiding and abetting false claims to the U.S. Navy and two counts of witness tampering. During jury selection, one of the jurors revealed that she hosted a conservative talk radio show that discussed immigration issues; though the juror admitted that her show was ideologically conservative, she also stated that she could approach the case impartially. Jones moved to strike the juror for cause, and the district court denied the motion. At trial, the government introduced jailhouse phone conversations involving Jones, his cousin Otis Jones, and, in one instance, Jones’s uncle Austin Jones. The district court admitted statements of Otis and Austin over the Jones’s objection. A federal jury convicted Jones on every count. At the sentencing phase, Jones raised an objection to the presentence report, which only grouped one of the witness tampering counts with the aiding and abetting false claims counts. The district court overruled the objection, sentencing Jones to serve concurrent fifty-two month sentences on each count, and ordering him to pay $134,702.39 in restitution for the monthly stipend fraud.
On appeal, the Fourth Circuit held that the district court properly impaneled the juror with an alleged conservative bias toward illegal immigration. Jones argued that, because his criminal activity involved facilitating illegal immigration, the juror could not have determined Jones’s guilt impartially. However, the Fourth Circuit noted the each juror’s mind need not be a “tabula rasa,” and that jurors must simply be able to put aside biases in order to reach a determination based on the evidence presented; furthermore, the juror asserted she could decide the case impartially, and Jones failed to sufficiently challenge her assurances. The Fourth Circuit also held that the district court properly admitted the statements made by Otis and Austin. On appeal, Jones argued that admission of these statements violated the Confrontation Clause, characterizing the statements as testimonial and asserting that he had no opportunity to cross-examine the declarants at or before trial. However, the Fourth Circuit found these statements were not testimonial, characterizing them as “casual conversations.” With regard to the first sentencing issue, the Fourth Circuit noted that, when a defendant is convicted of both the underlying offense and an obstruction of justice offense—like witness tampering—the obstruction offense is grouped with the underlying offense under the Federal Sentencing Guidelines, with a resulting increase in offense level. However, where there are multiple obstruction offenses, the Sentencing Guidelines advise the district court to group only the most serious obstruction count. Thus, the district court properly grouped only one of the two witness tampering counts—specifically, the more serious one. With regard to the other sentencing issue, Jones asserted that his restitutionary payments should be reduced, as some of the participants in the fraudulent scheme received stipend payments after making confessions to the NCIS. Jones argued that these losses were not reasonably foreseeable, as required by the Sentencing Guidelines; however, the Fourth Circuit rejected this argument, finding it “entirely foreseeable that losses caused by a fraudulent scheme will not cease the moment that coconspirators confess to the fraud.”
– Stephen Sutherland