U.S. v. Jackson
| Citation | 918 F.3d 467 |
| Decision Date | 12 March 2019 |
| Docket Number | Nos. 17-3896/3902,s. 17-3896/3902 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kenneth J. JACKSON, Jr. (17-3896); Antowine Palmer (17-3902), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Kevin M. Cafferkey, Cleveland, Ohio, for Appellant in 17-3896. Jaime P. Serrat, JAIME P. SERRAT LLC, Cleveland, Ohio, for Appellant in 17-3902. Matthew B. Kall, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Kevin M. Cafferkey, Cleveland, Ohio, for Appellant in 17-3896. Jaime P. Serrat, JAIME P. SERRAT LLC, Cleveland, Ohio, for Appellant in 17-3902. Matthew B. Kall, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.
Before: WHITE, DONALD, and LARSEN, Circuit Judges.
A jury convicted Kenneth Jackson, Jr. of three counts of carjacking and three counts of using, carrying, or possessing a firearm during a crime of violence, and Antowine Palmer of one count of carjacking and one count of using, carrying, or possessing a firearm during a crime of violence. In this consolidated appeal, defendants challenge their convictions and aspects of their sentences. We vacate one of Jackson's firearms convictions and remand for resentencing. We affirm in all other respects.
A. Pre-Trial Proceedings
In December 2015, Jackson, Palmer, Tervon'tae Taylor, D'Wan Dillard, Jr., and Calvin Rembert were charged with multiple violations of 18 U.S.C. § 2119(2) —carjacking resulting in serious bodily injury—and 18 U.S.C. § 924(c)(1)(A)(ii) —using, carrying, or possessing a firearm during a crime of violence. Palmer was also charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
In August 2016, Rembert and Taylor both entered guilty pleas pursuant to agreements with the government.1 Rembert's and Taylor's plea agreements required that they cooperate with the government and testify against their co-defendants. In November 2016, Dillard entered a guilty plea pursuant to a plea agreement; Dillard did not testify at trial.
Palmer moved for a bifurcated trial, asking that the trial on the felon-in-possession charge be severed from the other charges against him to avoid undue prejudice from the introduction of evidence of his prior felony convictions in connection with the felon-in-possession charge. The court denied Palmer's motion, and Palmer subsequently pleaded guilty to the felon-in-possession charge.
Prior to trial, the government moved for leave to introduce background evidence of defendants' gang activities. The government argued that evidence of defendants' affiliation with the Heartless Felons Broadway gang (HF Broadway), their ongoing feud with rival gang Heartless Felons Fleet (HF Fleet), and their involvement in several retaliatory drive-by shootings should be admitted as "evidence inextricably intertwined" with the underlying offense, or as evidence of "other acts" under Federal Rule of Evidence 404(b). (R. 55, PID 295-97.) The government asserted that evidence of the defendants' gang activity would show that "[t]he victims [in the instant case] were carjacked so HF Broadway members would have vehicles to use in drive-by shootings, and specifically vehicles not known to HF Fleet members." (Id. at PID 292.)
The government proposed to introduce this evidence through two witnesses: Detective Al Johnson of the Cleveland Division of Police would testify about the rivalry between HF Broadway and HF Fleet, and Rembert would testify about Jackson's and Palmer's membership in HF Broadway and roles in the carjackings.
The district court granted in part and denied in part the government's motion. The court concluded that because defendants were not charged with gang activity, the probative value of Detective Johnson's testimony was substantially outweighed by the danger of unfair prejudice to defendants. Detective Johnson therefore did not testify at trial. The court did, however, permit Rembert to testify regarding the relationship between co-defendants as well as the motive for the July 25, 2015 carjacking.
When trial began on April 25, 2017, Jackson and Palmer were the only remaining defendants. They were charged as follows:
Charges Remaining at the Start of Trial
§ 2119(2) § 924(c)
Count 1
Defendants: Jackson, Palmer Count 2: Jackson
Offense Date: July 25, 2015
Victim: D.G. Count 4: Palmer
Vehicle: 2006 GMC Denali
Count 6
Defendants: Jackson, Palmer Count 7: Jackson
Offense Date: July 26, 2015
Victim: Z.N. Count 9: Palmer
Vehicle: 2013 Toyota Corolla (gray)
Count 10
Defendants: Jackson, Palmer Count 11: Jackson
Offense Date: July 26, 2015
Victim: G.B. Count 13: Palmer
Vehicle: 2011 Toyota Corolla (black)
Count 14
Defendants: Jackson, Palmer Count 15: Jackson
Offense Date: August 12, 2015
Victim: M.B. Count 17: Palmer
Vehicle: 2008 Mazda CX-7
Count 18
Defendant: Jackson
Offense Date: August 12, 2015 Count 19: Jackson
Victim: E.M
Vehicle: 2014 Nissan Murano
B. Trial Proceedings
The government presented evidence concerning multiple episodes of violence and gang-related criminality in the summer of 2015. The government's evidence consisted of first-hand accounts from the victims of the five charged carjackings; the testimony and reports of Cleveland police officers and FBI agents who responded to the incidents and recovered the stolen vehicles; the testimony of several officers involved in a car chase with Jackson and Palmer; police interviews with Palmer; the testimony of cooperating co-defendants Rembert and Taylor; DNA and fingerprint evidence linking Jackson and Palmer to the stolen vehicles; video surveillance of defendants using a credit card stolen from one of the victims; and geographical positioning data and photographs extracted from a cellphone linked to Palmer.
During his testimony, Taylor refused to implicate Jackson or Palmer with respect to the carjackings covered by Counts 14 and 18. As a result, the government dismissed those counts and the associated § 924(c) charges. Taylor also refused to implicate Jackson or Palmer with respect to the carjackings covered by Counts 6 and 10, and the government dismissed those counts and the associated § 924(c) charges against Palmer only.
The government presented evidence that Palmer, Jackson, and Rembert were members of HF Broadway, a Cleveland street gang embroiled in a violent rivalry with HF Fleet. Palmer held a position of authority in HF Broadway and exercised control over Jackson and Rembert. On July 25, 2015, Palmer, Jackson, Rembert, and Taylor—who was not a member of HF Broadway—set out armed with pistols to retaliate against HF Fleet for an earlier incident. To that end, defendants decided to steal a car to avoid recognition by HF Fleet; Palmer specifically told the group that they needed "to get a car" in order to retaliate. (R. 205, PID 2390-91.) The four drove in Rembert's Buick until Jackson and Taylor spotted a Dodge Intrepid that had already been stolen and required only a screwdriver to operate.2 Jackson and Taylor got in the Intrepid and drove back to Jackson's house while Palmer and Rembert followed. Once there, all four got into the Intrepid and drove around the neighborhood. When the group spotted a member of HF Fleet, Palmer shot approximately ten rounds at the rival gang member's vehicle. The defendants sped away and headed to "some girl['s] house to grab some more bullets." (Id. at PID 2399.) Palmer asked if anyone else in the car needed bullets, retrieved bullets from inside the house, and gave a few to Rembert. All of the foregoing was introduced as background evidence of Jackson and Palmer's motive; Jackson and Palmer were not charged with any of the conduct just described.
After the shooting, defendants realized that the Intrepid was now recognizable to members of HF Fleet and set out to steal a new vehicle. Rembert testified that they headed to the Tremont area of Cleveland, where Jackson and Taylor spotted something and left the vehicle, brandishing their firearms. While Jackson and Taylor were out of the vehicle, Palmer instructed Rembert to get in the driver's seat and be ready to drive the car. Palmer was carrying a gun at this time. Taylor testified that he and Jackson carjacked a Denali but stated that there was no conversation concerning the plan to do so; he and Jackson "just did it." (R. 206, PID 2575.)
D.G., the victim of the carjacking, testified that he had just finished loading his GMC Denali when he was approached by two or three younger African-American men with guns who demanded his wallet, keys, "and everything else." (R. 203, PID 1918-19.) After threatening to kill him, the men took D.G.'s cellphone, wallet, money, work keys, motorcycle keys, and the Denali. D.G. testified that the men hit him in the back of the head with the butt of a gun so hard that he briefly lost consciousness, and kicked or elbowed him while he was on the ground. D.G. testified that he "had a nice little goose egg on [his] head, and ... some scraping and bruising like road rash on [his] arm, shoulder, from where [he] went down to the ground" but he declined medical attention. (Id. at PID 1931.) D.G. later identified Jackson as one of his assailants with 95% certainty and confirmed that identification at trial.
Driving the stolen Denali, Jackson and Taylor pulled up next to Palmer and Rembert. Palmer and Rembert followed the Denali back to Jackson's house, and all four "started looking through the car just to see what was in there." (R. 205, PID 2405.) They found a credit card, which they then used to purchase items at a Walmart; the government introduced security-camera footage...
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