United States of America v.  Jermar Bernard Marlon Jones

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-4211 
JERMAR BERNARD MARLON JONES,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Mark S. Davis, District Judge.
(2:11-cr-00083-MSD-FBS-1)
Argued: March 20, 2013
Decided: May 29, 2013
Before KING, DIAZ, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion,
in which Judge King and Judge Floyd joined.

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COUNSEL
ARGUED: James R. Theuer, Norfolk, Virginia, for Appel-
lant. Randy Carl Stoker, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF:
Neil H. MacBride, United States Attorney, Alexandria, Vir-
ginia, Joseph E. DePadilla, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia; Gillian R. Whitford-McHale, Law Student, UNI-
VERSITY OF VIRGINIA, Charlottesville, Virginia, for
Appellee.
OPINION
DIAZ, Circuit Judge:
A federal jury convicted Jermar Jones of several criminal
counts stemming from his participation in a scheme to arrange
fraudulent marriages between Navy sailors and foreign
nationals. The district court sentenced Jones to fifty-two
months’ imprisonment for each count of conviction, all to be
served concurrently. On appeal, Jones asserts two Sixth
Amendment errors. First, he contends the admission of hear-
say statements made on recorded prison telephone calls vio-
lated the Confrontation Clause of the Sixth Amendment.
Second, Jones argues the district court’s refusal to strike a
juror for cause violated his Sixth Amendment right to an
impartial jury.
Jones also challenges two sentencing decisions by the dis-
trict court. First, he asserts the district court erred in grouping
the counts of conviction under the United States Sentencing
Guidelines. Second, Jones argues that the district court erred
in calculating the total loss amount under the Sentencing
Guidelines.
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As we explain, we conclude that the district court did not
err at either the guilt or sentencing phases. Accordingly, we
affirm.
I.
Jermar Jones served in the United States Navy for several
years. Between 2006 and 2008, Jones and codefendant Justin
Robbins orchestrated several fraudulent marriages between
several of his shipmates and foreign nationals. The arrange-
ments provided mutual benefits. The sailor would receive a
monthly "Basic Allowance for Housing" ("BAH") stipend to
support his spouse, while the foreign national would enjoy an
opportunity to secure permanent residency in the United
States. For his matchmaking services, Jones would either
require the alien spouse to pay him a fee or demand receipt
of his shipmate’s "back pay"—funds paid to the sailor for the
interim period between his marriage and the commencement
of his BAH stipend.
Jones individually arranged the marriages of (1) Chitara
Bowers and Otis Jones ("Otis"); (2) Ruben Ortiz and Devenee
Duncan; (3) Darius Alexander and Nasara Smith; and (4)
Andrea Wallace and Ashton Antoine. In addition to coordi-
nating the nuptials, on multiple occasions Jones intimidated
the participants to preserve the conspiracy. For example,
when the Naval Criminal Investigative Service ("NCIS")
began looking into the validity of the marriages, Jones threat-
ened Alexander and Bowers and warned them not to cooper-
ate, telling Bowers he would "handle" her and that he knew
"where [you] stay at." J.A. 200.
A grand jury returned an eleven-count indictment charging
Jones with one count of conspiracy to commit marriage fraud
under 18 U.S.C. § 371 and 8 U.S.C. § 1325(c), four counts of
aiding and abetting marriage fraud under 18 U.S.C. § 2 and 8
U.S.C. § 1325(c), three counts of aiding and abetting false
claims to the United States Navy under 18 U.S.C. §§ 287 and
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2, two counts of witness tampering under 18 U.S.C.
§ 1512(b)(3), and one count of making a false statement to the
NCIS under 18 U.S.C. § 1001(a)(2).
During jury selection, Juror No. 42 disclosed that she was
the host of a conservative radio talk show that discussed
immigration issues. When asked about her views on illegal
immigration, Juror No. 42 stated that "[m]y mom was natural-
ized . . . and she said, do you know, I came here legally and
I did what I had to to come to this country legally, and every-
body else should have to do the same thing. And I agree with
that sentiment." J.A. 38-39. Juror No. 42 admitted that "[m]y
show is conservative," J.A. 38, but gave assurances that she
could decide the case impartially. The district court denied
Jones’s motion to strike the juror for cause.
At trial, most members of the conspiracy testified against
Jones, claiming that Jones facilitated fraudulent marriages for
them and others. The government also introduced three jail-
house phone conversations between Jones and his cousin Otis.
One of these conversations included a three-way call between
Jones, Otis, and Jones’s uncle Austin Jones ("Austin"). The
phone calls were recorded by the Chesapeake Correctional
Center ("CCC"), where Otis was incarcerated. Before a call
from a prisoner is connected, the inmate telephone system
broadcasts an advisory to the parties that "all calls are subject
to recording." J.A. 76.
During one jailhouse phone call, Jones told Otis "don’t let
em . . . try to break you, man. . . . We have everything safe
for you[.]" J.A. 479. Similarly, Jones instructed Otis to "tell
them men there is no fraud, no fraud. Tell your, tell your, tell
your attorney to give me a call, man." J.A. 504. Jones also
suggested that his family would support Otis should he return
home to Grenada. Finally, Otis and Jones both expressed con-
cern that NCIS agents would secure Bower’s cooperation.
Perhaps the most damaging statement occurred when Aus-
tin joined one of the jailhouse calls and told Otis:
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Tell them you didn’t conspire to do anything; you
just, you, you, you married this woman because you
saw her, you fell in love with her and all this stuff,
you know, and just tell him exactly. That’s how it is;
you didn’t conspire, that’s not conspiracy!
J.A. 491. Defense counsel objected that the statements by Otis
and Austin were inadmissible hearsay. The district court,
however, admitted the statements under the coconspirator
exclusion to hearsay, Fed. R. Evid. 801(d)(2)(E), and to pro-
vide context to the admissible statements of Jones.
After a four-day trial, the jury convicted Jones on all
counts. At sentencing, Jones objected to the presentence
report ("PSR") that only grouped one of the two witness tam-
pering counts (Count 10) with the false claims counts (Counts
6–8). The district court overruled that objection, sentenced
Jones to fifty-two months’ imprisonment on each count of
conviction, all to run concurrently, and ordered $134,702.39
in restitution.
II.
We first address Jones’s objection to the admission of the
prison telephone calls. Before the district court, Jones tied his
objection to the non-constitutional hearsay prohibition of Fed-
eral Rule of Evidence 802. On appeal, Jones has switched
course and raised a Confrontation Clause challenge. We gen-
erally limit our review of claims not properly preserved in the
district court to plain error. Jones, however, argues that plain
error review should not apply because any Confrontation
Clause objection would have been futile after the district court
ruled the evidence admissible under the coconspirator exclu-
sion to hearsay. We need not decide that question for, as we
explain below, no Confrontation Clause violation occurred.
The Sixth Amendment provides: "In all criminal prosecu-
tions, the accused shall enjoy the right to . . . be confronted
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with witnesses against him." This constitutional right to con-
frontation bars extrajudicial "testimonial statements of a wit-
ness who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for
cross-examination." Crawford v. Washington, 541 U.S. 36,
53-54 (2004).
While Jones concedes that his statements on the phone calls
were admissible under the party opponent exception to hear-
say, see Fed. R. Evid. 801(d)(2)(A), he challenges the admis-
sion of the statements made by Otis and Austin during the
calls. Specifically, Jones now contends that Otis and Austin
gave "testimonial" statements on the prison phone calls with-
out Jones having had the opportunity to cross-examine the
declarants before or at trial. We disagree with Jones’s argu-
ment.
While the Supreme Court has postponed "any effort to spell
out a comprehensive definition of ‘testimonial,’" Michigan v.
Bryant, 131 S. Ct. 1143, 1153 (2011) (internal quotations
omitted), it has limited the Confrontation Clause’s reach to
those statements "made under circumstances which would
lead an objective witness reasonably to believe that the state-
ments would be available for use at a later trial." Crawford,
541 U.S. at 52.* We have paraphrased this standard to mean
that statements are testimonial when "a reasonable person in
the declarant’s position would have expected his statements to
be used at trial—that is, whether the declarant would have
expected or intended to ‘bear witness’ against another in a
later proceeding." United States v. Udeozor, 515 F.3d 260,
268 (4th Cir. 2008).
In conducting that contextual inquiry, we reject the propo-
*The Court in Bryant emphasized that "the most important instances in
which the Clause restricts the introduction of out-of-court statements are
those in which state actors are involved in a formal, out-of-court interroga-
tion of a witness to obtain evidence for trial." 131 S. Ct. at 1155.
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sition advanced by Jones that a declarant’s knowledge that he
is being recorded is dispositive. Even if Otis and Austin were
aware that the prison was recording their conversation, a
declarant’s understanding that a statement could potentially
serve as criminal evidence does not necessarily denote "testi-
monial" intent. See Davis v. Washington, 547 U.S. 813, 822
(2006) (holding statements made during 911 emergency
phone call were non-testimonial when uttered only "to enable
police assistance to meet an ongoing emergency"); United
States v. Shavers, 693 F.3d 363, 390, 395-96 (3d Cir. 2012)
(holding that inmates who received advisory that prison phone
calls were recorded did not give "testimonial" statements);
United States v. Ellis, 460 F.3d 920, 926 (7th Cir. 2006)
("[T]he mere fact a person creating a business record (or other
similar record) knows the record might be used for criminal
prosecution does not by itself make that record testimonial.").
Put another way, just because recorded statements are used
at trial does not mean they were "created for trial." United
States v. Cabrera-Beltran, 660 F.3d 742, 752 (4th Cir. 2011).
As with 911 emergency services, a hospital, or a business, a
prison has a significant institutional reason for recording
phone calls outside of procuring forensic evidence—i.e.,
policing its own facility by monitoring prisoners’ contact with
individuals outside the prison. To adopt the rule Jones pro-
poses would require us to conclude that all parties to a jail-
house phone call categorically intend to bear witness against
the person their statements may ultimately incriminate.
Otis and Austin certainly did not speak on these phone calls
for that reason. Nowhere in these casual conversations, which
primarily concerned Otis’s emotional state and the prison con-
ditions at CCC, do either Otis or Austin demonstrate an intent
to ‘bear witness’ against Jones. In fact, any incriminating
statement made during these conversations tended to also
incriminate them in the fraudulent scheme.
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Because we are satisfied that the statements made by Otis
and Austin on the prison telephone calls were not testimonial,
their admission did not violate the Confrontation Clause.
III.
Next, Jones asserts that the decision by the district court to
impanel Juror No. 42 violated his Sixth Amendment right to
a trial by an impartial jury. Jones claims the juror harbored a
"conservative" bias toward the issue of illegal immigration,
and as his criminal conduct involved facilitating illegal immi-
gration through marriage fraud, that bias affected the juror’s
determination of his guilt. We disagree with Jones.
"It is the settled law of this circuit that a district judge
retains a very broad discretion in deciding whether to excuse
a juror for cause and his decision will not be overturned
except for manifest abuse of that discretion." United States v.
Turner, 389 F.3d 111, 115 (4th Cir. 2004) (internal quotations
omitted). "In selecting a jury, the trial judge is in the best
position to make judgments about the impartiality and credi-
bility of potential jurors based on the judge’s own evaluations
of responses to questions." Cabrera-Beltran, 660 F.3d at 749
(internal quotations omitted).
The district court properly exercised its discretion here. To
begin with, Juror No. 42’s belief that aliens should comply
with immigration laws, and her work as a conservative radio
talk show host where she discussed such issues, were not a
per se bar to serving as a juror in this case. Because jurors will
have opinions from their life experiences, it would be imprac-
tical for the Sixth Amendment to require that each juror’s
mind be a tabula rasa:
To hold that the mere existence of any preconceived
notion as to the guilt or innocence of an accused,
without more, is sufficient to rebut the presumption
of a prospective juror’s impartiality would be to
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establish an impossible standard. It is sufficient if the
juror can lay aside his impression or opinion and
render a verdict based on the evidence presented in
court.
Murphy v. Florida, 421 U.S. 794, 800 (1975) (internal quota-
tions omitted).
Here, Juror No. 42 said—not once, but three times—she
could do just that. After the district court explained the pur-
pose of voir dire, the juror acknowledged: "I know that what
you’re trying to do is figure out if someone could serve
impartially. I would—I believe that I could according to the
evidence and the Constitution, yes." J.A. 38. The court asked
Juror No. 42 whether, if a trial involved allegations of an indi-
vidual facilitating illegal immigration, she could "listen fairly
and impartially to the evidence and render a fair and impartial
verdict based only on the evidence that you hear here in the
courtroom?" J.A. 39. The juror responded: "Yes. That’s the
beauty of the Constitution, is you’re innocent until proven
guilty." J.A. 39. The court then secured a final reassurance of
impartiality: "So is there . . . [n]o doubt in your mind? You
think you can render a fair and impartial . . . verdict if selected
to serve on this jury?" J.A. 40. Juror No. 42 responded: "Yes."
J.A. 40.
Although a juror’s avowal of impartiality is not dispositive,
see Murphy, 421 U.S. at 800, "if a district court views juror
assurances of continued impartiality to be credible, the court
may rely upon such assurances in deciding whether a defen-
dant has satisfied the burden of proving actual prejudice."
United States v. Corrado, 304 F.3d 593, 603 (6th Cir. 2002)
(internal quotations omitted). Because Jones fails to cast
doubt on Juror No. 42’s assurance that she could set aside any
opinion she may have had on the case, see id., we defer to the
district court’s determination that she could serve impartially.
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IV.
Jones next challenges the district court’s calculation of the
advisory sentencing range under the United States Sentencing
Guidelines, claiming that the court incorrectly grouped only
one of the witness tampering counts (Counts 9-10) with the
aiding and abetting false claims counts (Counts 6–8). "The
grouping of multiple convictions, pursuant to USSG § 3D1.2,
involves a legal interpretation of guidelines terminology, and
we review grouping issues de novo." United States v. Bolden,
325 F.3d 471, 495 (4th Cir. 2003). Jones argues that the court
should have grouped both witness tampering counts with the
false claims counts, or alternatively, should have grouped
Count 9 with the conspiracy and marriage fraud counts
(Counts 1–5). Had the district court grouped both witness
tampering counts, either with the false claims counts or with
the conspiracy counts, Jones’s final guideline range would
have been lower.
In addressing Jones’s arguments, we consider whether the
relevant Sentencing Guidelines, USSG §§ 3C1.1, 3D1.2,
require a district court to group only the "most serious" of
multiple obstruction of justice convictions (here the witness
tampering counts) with the underlying offense—i.e. "the
offense with respect to which the obstructive conduct
occurred." USSG § 3C1.1 cmt. n. 8. In answering this ques-
tion, we follow the thread left by the district court and make
our way through the labyrinth of Sentencing Guidelines provi-
sions that govern Jones’s claim of error.
The Sentencing Guidelines provide two methods by which
a district court can punish a defendant for committing an "ob-
struction of justice" offense such as witness tampering. First,
a court may sentence a defendant on an obstruction of justice
conviction itself. See USSG § 2J1.2(a). Second, where there
is no conviction for obstruction of justice, a court may still
apply a two-level enhancement to another conviction if it
finds by a preponderance of the evidence that a defendant
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obstructed justice with respect to that underlying offense. See
id. § 3C1.1.
Where, as here, the defendant is convicted of both an
obstruction offense (witness tampering) and the underlying
offense (aiding and abetting false claims), the Sentencing
Guidelines provide that "the count for the obstruction offense
will be grouped with the count for the underlying offense[.]"
Id. § 3C1.1 cmt. n. 8. From there, the Guidelines direct that
"[t]he offense level for that group of closely related counts
will be the offense level for the underlying offense increased
by the 2-level adjustment specified by this section, or the
offense level for the obstruction offense, whichever is
greater." Id.
In other words, when a defendant is convicted of both an
obstruction of justice offense and the underlying offense, the
Sentencing Guidelines group the two counts and either apply
a two-level enhancement to the underlying offense or apply
the offense level for the obstruction conviction, but never
both. In this context, grouping serves two purposes: (1) obvi-
ating a factual finding of obstruction of justice at sentencing
when the trier of fact has already reached such a finding at the
guilt phase; and (2) preventing the "double counting" that
would occur if a district court applied both a base offense
level to the obstruction conviction and a two-level obstruction
enhancement to the underlying offense. See id. § 3D1.2 cmt.
n. 5.
USSG § 3C1.1 Application Note 8 provides that a court
should group obstruction offenses under USSG § 3D1.2(c),
which groups criminal counts of conviction "[w]hen one of
the counts embodies conduct that is treated as a specific
offense characteristic in, or other adjustment to, the guideline
applicable to another of the counts." Because witness tamper-
ing serves as an adjustment (two-level obstruction enhance-
ment) to the false claims guideline, it must be grouped.
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However, where, as here, there are multiple obstruction
convictions to group (in the form of two witness tampering
counts), USSG § 3D1.2(c) Application Note 5 qualifies sub-
section (c):
Sometimes there may be several counts, each of
which could be treated as an aggravating factor to
another more serious count, but the guideline for the
more serious count provides an adjustment for only
one occurrence of that factor. In such cases, only the
count representing the most serious of those factors
is to be grouped with the other count.
Here there were two witness tampering counts, each of which
could have supported a two-level enhancement to the more
serious count of aiding and abetting false claims. But because
the Sentencing Guidelines permit only one obstruction of jus-
tice enhancement under USSG § 3C1.1, USSG § 3D1.2
Application Note 5 directs the district court to group only the
count "representing the most serious" obstructive conduct. See
United States v. Beckner, 983 F.2d 1380, 1385 (6th Cir. 1993)
(grouping only one of two "resisting arrest" counts with
underlying offense pursuant to Application Note 5).
The district court meticulously followed this analysis to this
point and found that because the witness tampering offense
against Bowers (Count 10) "caused the potential witness to be
in fear and physically upset, whereas Count 9 involved wit-
ness tampering with no evidence of a significant emotional
impact on the target . . . Count Ten is the most serious of the
witness tampering counts." J.A. 590. Accordingly, the district
court grouped Count 10.
We agree that this was the proper way to group multiple
obstruction of justice convictions under the Sentencing
Guidelines. Jones’s insistence that the district court should
have grouped both obstruction convictions with the underly-
ing offense overlooks (1) USSG § 3C1.1 Application Note 8,
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which provides that the grouping of obstruction of justice
convictions should occur pursuant to USSG § 3D1.2(c); and
(2) USSG § 3D1.2 Application Note 5, which requires a dis-
trict court to group only the "most serious" of the obstruction
convictions.
We also reject Jones’s alternative argument that even if the
district court was correct to group only Count 10, it should
nevertheless have grouped Count 9 with the counts for con-
spiracy and aiding and abetting marriage fraud (counts 1–5).
Jones overlooks that USSG § 3C1.1 Application Note 8 pro-
vides that a court may group an obstruction conviction with
only one "underlying offense": "the offense with respect to
which the obstructive conduct occurred." Here the offense
underlying the witness tampering counts was the aiding and
abetting of false claims, therefore the obstruction counts were
eligible for grouping only with those counts.
V.
Finally, we address the challenge to the district court’s total
loss calculation caused by Jones’s fraudulent scheme. In a
conviction for false claims against the United States, USSG
§ 2B1.1(b) escalates the applicable offense level based on the
amount of total loss attributable to the defendant’s conduct. In
this case, the amount of loss calculated by the district court
($134,702.39) resulted in a ten-level increase in the offense
level. See USSG § 2B1.1(b)(1)(F). The district court also
ordered Jones to pay this same amount in restitution.
"The determination of loss attributable to a fraud scheme is
a factual issue for resolution by the district court, and we
review such a finding of fact only for clear error." United
States v. Allmendinger, 706 F.3d 330, 341 (4th Cir. 2013)
(internal quotations omitted). In calculating the total loss attri-
bution, a district court "need only make a reasonable estimate
of the loss." USSG § 2B1.1 cmt. n. 3(C). In reaching this esti-
mate, "‘[a]ctual loss’ means the reasonably foreseeable pecu-
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niary harm that resulted from the offense." Id. cmt. n. 3(A)(i).
"‘[R]easonably foreseeable pecuniary harm’ means pecuniary
harm that the defendant knew or, under the circumstances,
reasonably should have known, was a potential result of the
offense." Id. cmt. n. 3(A)(iv).
The district court estimated that Jones defrauded the United
States out of $134,702.39 of BAH funds. Jones contends that
he should not be responsible for $28,844.40 of that amount,
because Bowers and Alexander received these payments long
"after they confessed to the [NCIS] that their respective mar-
riages were fraudulent." Appellant’s Br. 17. In Bowers’s case,
she received BAH benefits for seven months after confessing,
while Alexander received benefits for fourteen months. Jones
argues that he could not have reasonably foreseen that Bowers
and Alexander would have continued to accept BAH benefits
after confessing to the fraud.
We addressed a similar argument in United States v. Trib-
ble, 209 F. App’x 332 (4th Cir. 2006), where the defendant
falsely claimed workers’ compensation from the United States
Postal Service. After conviction and on appeal, Tribble
claimed that the district court erred in its "actual loss" calcula-
tion by including funds he received after indictment—as the
receipt of these funds was not reasonably foreseeable. We
rejected that argument:
In this situation, it was entirely reasonable for Trib-
ble to foresee that he would continue to receive ben-
efits until he was actually convicted. Like any
accused, a defendant charged with workers’ compen-
sation fraud is innocent until proven guilty. Consis-
tent therewith, the pertinent statute requires that
compensation benefits be terminated when a benefi-
ciary is convicted of a fraud scheme relating thereto.
Id. at 341.
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It is true that the defendant in Tribble continued to deny
criminal wrongdoing, whereas the coconspirators in this case
did not. Nevertheless, it is entirely foreseeable that losses
caused by a fraudulent scheme will not cease the moment that
coconspirators confess to the fraud. Cf. Allmendinger, 706
F.3d at 341-42 (affirming calculation of losses suffered by
investors even after defendant sold ownership interest in
investment company that operated fraudulent schemes);
United States v. Taylor, 41 F. App’x 380, 383 (10th Cir.
2002) (affirming calculation of losses when coconspirator
continued to embezzle money even after defendant left
employment at the bank).
A confession is neither a final resolution of liability nor a
self-initiating termination to a criminal enterprise. In this case,
the confessions occurred during an investigation, at which
point Alexander and Bowers could still have recanted, and
NCIS agents had yet to establish the culpability of the other
spouses and coconspirators. Jones was also actively obstruct-
ing the NCIS investigation to ensure that the fraud continued,
making specious his claim that he could not foresee that very
result.
Moreover, federal regulations did not require the Navy to
terminate BAH payments the moment Alexander and Bowers
confessed, nor for that matter do the regulations establish any
particular timetable for terminating payments in cases of
fraud. See Joint Federal Travel Regulations, ch. 10, ¶ U10106.
We therefore conclude that it was reasonably foreseeable that
the Navy would not terminate BAH payments until it had fin-
ished its investigation and formally determined that the BAH
funds had been illicitly obtained. While one can quibble over
whether the Navy acted with utmost dispatch to stop the pay-
ments to Alexander and Bowers, we nonetheless believe that
the amount estimated by the district court was a foreseeable
loss caused by the fraud.
The Sentencing Guidelines recognize that computing the
losses caused by a fraud will often be an inexact calculation,
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which is why a "court need only make a reasonable estimate."
USSG § 2B1.1 cmt. n. 3(C); see also United States v. Miller,
316 F.3d 495, 503 (4th Cir. 2003). Because the district court
reached a reasonable estimate in its loss calculation, we reject
this argument.
VI.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
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