Filed: Sep. 06, 2007
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT September 6, 2007 No. 07-10071 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 06-00078-CR-5-RS UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MANTRA FILMS, INC., Defendant, JOSEPH FRANCIS, Appellant. _ Appeal from the United States District Court for the Northern District of Florida _ (September 6, 2007) Before ANDERSON, BLACK and MARCUS, Circuit Jud
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT September 6, 2007 No. 07-10071 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 06-00078-CR-5-RS UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MANTRA FILMS, INC., Defendant, JOSEPH FRANCIS, Appellant. _ Appeal from the United States District Court for the Northern District of Florida _ (September 6, 2007) Before ANDERSON, BLACK and MARCUS, Circuit Judg..
More
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 6, 2007
No. 07-10071 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00078-CR-5-RS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANTRA FILMS, INC.,
Defendant,
JOSEPH FRANCIS,
Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(September 6, 2007)
Before ANDERSON, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Mantra Films, Inc., produces and distributes a popular series of sexually
graphic DVDs called “Girls Gone Wild.” The DVDs — which feature young
women drinking and partying while frequently exposing themselves in whole or in
part — contain footage shot in a variety of locations, including beaches, lakes,
college campuses, hotel rooms, the streets of New Orleans during Mardi Gras, etc.
Mantra pleaded guilty in the district court to a ten-count Information in which the
Government charged the company with violating two provisions of the Child
Protection Restoration and Penalties Enhancement Act of 1990. See 18 U.S.C.
§ 2257(f)(1), (f)(4). Specifically, the Government charged that Mantra (1) did not
maintain “identifiable records” on each of the individuals featured in certain of its
DVDs, and (2) did not attach to its DVDs a statement disclosing the location where
“the required age documentation records” could be located.1
The district court sentenced Mantra to a five-year term of probation on each
count and ordered the probation terms to run concurrently. The court also ordered
Mantra to pay a fine of $1.6 million, an amount negotiated as part of Mantra’s plea
agreement with the Government. As one of the special conditions of Mantra’s
probation, the court ordered its CEO, Joseph R. Francis, to perform community
1
The DVDs at issue are: (1) Ultimate Spring Break, Vols. 3 and 4; (2) Girls Gone Wild
On Campus Uncensored; (3) Totally Exposed and Censored, Vols. 1 through 5; and (4) Girls
Gone Wild College Girls Exposed/Sexy Sorority Sweethearts.
2
service “for a total term of 30 consecutive months . . . in the Panama City Division
of the Northern District of Florida,” the location in which the targeted footage was
recorded. Francis filed this appeal to challenge the portion of Mantra’s sentence
that requires him to perform community service. The propriety of that portion of
Mantra’s sentence is the only issue before us.
Francis argues that because he was never personally named as a defendant in
this case the district court violated his due process rights when it ordered him to
travel to Florida to perform community service on behalf of the named defendant:
Mantra, the corporation over which he exercises nearly complete control. The
Government points out that Francis, who appeared in person before the district
judge at Mantra’s sentencing hearing and was given an opportunity to object to the
sentence imposed by the court, made no objection to the community-service
provision (or any other aspect of Mantra’s sentence). Because Francis did not
object below, the Government argues that we should review the district court’s
sentencing determination for plain error only. We agree. Finding no plain error,
we affirm the judgment of the district court.
I.
At the sentencing hearing, the district court explained to Mantra’s lawyer,
to Francis (who personally appeared on behalf of Mantra upon the district court’s
3
order), and to the AUSA that the following “special condition[]” would attach to
Mantra’s sentence of probation:
THE COURT: Mantra Films, Incorporated, shall cause its chief
executive officer [Francis] . . . to perform, on
Mantra’s behalf . . . community service . . . each
month, at the direction of the United States
probation officer, for a total term of 30 consecutive
months.
. . . . .
Now let me explain the purpose of this. At the
time of these offenses, it is clear that Mr. Francis
exercised total control [over Mantra], and he set
the tone. And I think it’s appropriate that he
perform this service on behalf of the corporation
. . . . Now this community service shall be
performed in the Panama City Division of the
Northern District of Florida. It makes no sense for
this service to be performed in California. The
offenses occurred in this community and these
offenses have had a profound effect on this
community.
After reiterating the terms of Mantra’s sentence, the following exchange occurred:
THE COURT: Again, Mr. Dyer,2 are there any objections to either
my ultimate findings of fact or conclusions of law
about this sentence?
MR. DYER: No, Your Honor.
THE COURT: Counsel, are there any objections to the manner in
which I pronounced sentence?
2
Mantra’s lawyer.
4
MS. MORROW:3 No, Your Honor.
MR. DYER: Your Honor, can I have just a minute to confer
with my clients?
(Defendants and counsel conferring.)
MR. DYER: Your Honor, we’re ready to proceed.
THE COURT: Again, are there any objections to the manner in
which I have pronounced sentence?
MR. DYER: No, Your Honor.
. . . . .
THE COURT: Okay. Does anybody have any questions? Does
anybody have anything further to bring up?
MR. DYER: No, Your Honor.
II.
It is clear from a review of the sentencing transcript that no objection was
made to district court’s imposition of community service. Plain-error review is
appropriate where an issue could have been, but was not, raised in the district court
and is instead raised for the first time on appeal. See United States v. Humphrey,
164 F.3d 585, 587 (11th Cir. 1999); Fed.R.Crim.P. 52(b). “No procedural
principle is more familiar . . . than that a constitutional right, or a right of any other
3
The AUSA.
5
sort, may be forfeited in criminal as well as civil cases by the failure to make
timely assertion of the right before a tribunal having jurisdiction to determine it.”
United States v. Olano, 507 U.S. 725, 731,
113 S. Ct. 1770, 1776 (1993).
“Four requirements must be met before we can reverse a district court for
plain error. . . . First, there must be an error. Second, the error must be plain.
Third, the error must affect substantial rights of the defendant. Fourth the error
must seriously affect the fairness, integrity, or public reputation of a judicial
proceeding.” Humphrey, 164 F.3d at 588 and n.3. We will assume for the sake of
argument that Francis has identified an error committed by the district court. His
failure to establish the second requirement is fatal to his appeal.
“A plain error is an error that is ‘obvious’ and is ‘clear under current law.’”
Id. at 588. The “clear under current law” requirement means that “at least where
the explicit language of a statute or rule does not specifically resolve an issue, there
can be no plain error where there is no precedent from the Supreme Court or this
Court directly resolving it.” United States v. Chau,
426 F.3d 1318, 1322 (11th Cir.
2005) (citation omitted).
Francis’s argument is this: a corporate officer’s due process rights are
violated when a district court requires the corporate officer (as an unnamed
defendant in a criminal case) to perform community service on behalf of the
6
officer’s corporation 4 (the named defendant) as a condition of the corporation’s
sentence of probation. This argument is not clearly resolved by “the explicit
language of a statute or rule.” Id. And it is not clearly resolved by the language of
the Due Process Clause of the Fifth Amendment — the constitutional provision
upon which Francis relies. Thus, the alleged error committed by the district court
can be “plain” only if “a precedent from the Supreme Court or this Court directly
resolv[es] it.”
Id. Francis has not cited any case from the Supreme Court or from
this Court specifically addressing the argument he presents in this appeal. So even
assuming the district court committed an error in requiring Francis to perform
community service as a condition of Mantra’s sentence of probation — a
proposition we do not address — any such error was not “plain” because it was not
“clear under existing law.”
Humphrey, 164 F.3d at 588.
III.
For these reasons, we conclude that the district court did not commit plain
error. The judgment of the district court is
AFFIRMED.
4
The district court expressly determined that Francis is the “founder, chief executive
officer, sole shareholder, sole director, and . . . official representative of the organization, Mantra
Films, Incorporated.” Francis did not challenge this factual finding below and does not
challenge it on appeal.
7
