FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 6, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-10071

Non-Argument Calendar

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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:
 The DVDs at issue are: (1) Ultimate Spring Break, Vols. 3 and 4; (2) Girls Gone Wild 1

On Campus Uncensored; (3) Totally Exposed and Censored, Vols. 1 through 5; and (4) Girls

Gone Wild College Girls Exposed/Sexy Sorority Sweethearts.

2

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
3

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
 Mantra’s lawyer. 2

4

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, are there any objections to either 2

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?
 The AUSA. 3

5

MS. MORROW: No, Your Honor. 3

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
6

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
 The district court expressly determined that Francis is the “founder, chief executive 4

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

officer’s corporation (the named defendant) as a condition of the corporation’s 4

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.