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United States v. Jackson

United States Court of Appeals, Sixth Circuit

March 12, 2019

United States of America, Plaintiff-Appellee,
v.
Kenneth J. Jackson, Jr. (17-3896); Antowine Palmer (17-3902), Defendants-Appellants. Charges Remaining at the Start of Trial § 2119(2) § 924(c) § 2119(2) § 924(c)

          Argued: July 26, 2018

          Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:15-cr-00453-1-Patricia A. Gaughan, District Judge.

         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.

          OPINION

          HELENE N. WHITE, CIRCUIT JUDGE.

         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.

         I. Background

         A. Pre-Trial Proceedings

         1. Indictment and Guilty Pleas

         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.

         2. Gang Evidence Motion in Limine

         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.

          3. Counts Remaining at the Start of Trial

         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 Offense Date: July 25, 2015 Victim: D.G. Vehicle: 2006 GMC Denali

Count 2: Jackson

Count 4: Palmer

Count 6:

Defendants: Jackson, Palmer Offense Date: July 26, 2015 Victim: Z.N. Vehicle: 2013 Toyota Corolla (gray)

Count 7: Jackson

Count 9: Palmer

Count 10:

Defendants: Jackson, Palmer Offense Date: July 26, 2015 Victim: G.B. Vehicle: 2011 Toyota Corolla (black)

Count 11: Jackson

Count 13: Palmer

Count 14:

Defendants: Jackson, Palmer Offense Date: August 12, 2015 Victim: M.B. Vehicle: 2008 Mazda CX-7

Count 15: Jackson

Count 17: Palmer

Count 18:

Defendant: Jackson

Offense Date: August 12, 2015

Victim: E.M.

Vehicle: 2014 Nissan Murano

Count 19: Jackson

         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.

         1. Background Evidence

         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.

         2. Count 1: GMC Denali Carjacking

         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 depicting all four using the card. Palmer confessed to an officer that he had used the stolen credit card but told the officer that the victim of the carjacking would not be able to identify him.

         The police ultimately recovered D.G.'s Denali near Jackson's house. The police processed the vehicle for physical evidence and discovered both defendants' DNA. Palmer admitted to having been in the Denali sometime after the theft.

         3. Counts 6 and 10: Carjacking of Two Toyota Corollas

         Counts 6 and 10 concern the simultaneous carjackings of two Toyota Corollas from victims Z.N. and G.B. The victims had parked near Z.N.'s house and were walking away from their cars when the carjackings occurred. Z.N. testified that they were carjacked by two African-American men with guns, and Z.N. was able to identify Jackson as one of the perpetrators with 80% certainty. G.B. testified that she and Z.N. had been carjacked and robbed at gunpoint by two African-American men, but she was unable to identify them.

         Beyond the victims' testimony, the government's evidence connecting Jackson and Palmer to the carjackings was indirect because Taylor-the government's only cooperating witness with knowledge of these carjackings-contradicted his earlier statements and did not incriminate Jackson or Palmer. Taylor refused to name anyone else who was involved in the carjackings, although he suggested there was at least one other person with him. Because Taylor contradicted the factual basis for his plea, the government introduced as impeachment evidence Taylor's prior statements that Jackson and Palmer had been involved in the double carjacking of the Corollas.

         The remaining evidence consisted of palm prints found in Z.N.'s gray Corolla belonging to Jackson, fingerprints found in G.B.'s black Corolla belonging to Palmer, the testimony of several officers who engaged Jackson and Palmer in a high-speed chase while Jackson and Palmer were driving in one of the Corollas, and Palmer's confession that he had been in one of the Corollas. Further, the Corollas were recovered near Jackson's home despite being stolen in another Cleveland neighborhood. Because Taylor refused to testify against Jackson and Palmer, the government relied on the evidence described above to secure Jackson's conviction, but dismissed all charges associated with the double carjacking as to Palmer.

         4. Counts 14 and 18: Dismissed Charges

         Taylor refused to testify against Jackson and Palmer concerning the carjackings at issue in Counts 14 and 18. Taylor contradicted the factual basis for his plea and testified that he had acted alone in committing these carjackings. The government introduced his prior inconsistent statements as impeachment evidence, but ultimately dismissed these charges in their entirety after Taylor refused to implicate Jackson and Palmer.

         Prior to Taylor's testimony, however, the government had introduced evidence that Jackson's fingerprints were inside the stolen Nissan Murano, that pictures of the stolen Mazda CX-7 were discovered on Palmer's cellphone, and that victim M.B.'s ATM card and work ID were later recovered in the gray Toyota, indicating a possible link to the carjacking charged in Count 6.

         5. Charges Presented to the Jury

         After the close of evidence, the following counts remained for the jury's consideration:

Charges Presented to the Jury
§ 2119(2)
§ 924(c)

Count 1:

Defendants: Jackson, Palmer Offense Date: July 25, 2015 Victim: D.G. Vehicle: 2006 GMC Denali

Count 2: Jackson

Count 4: Palmer

Count 6:

Defendants: Jackson

Offense Date: July 26, 2015

Victim: Z.N.

Vehicle: 2013 Toyota Corolla (gray)

Count 7: Jackson

Count 10:

Defendants: Jackson

Offense Date: July 26, 2015

Victim: G.B.

Vehicle: 2011 Toyota Corolla (black)

Count 11: Jackson

         Palmer and Jackson both moved for a judgment of acquittal, and the court denied both motions. However, the court found that the government had failed to prove that any victim sustained "serious bodily injury," and instructed the jury on the carjacking charge without an enhancement for serious bodily injury. (R. 207, PID 2666-69.)

         6. Closing Arguments, Jury Instructions, and Verdict

         At closing, the government argued that the jury should return a guilty verdict on all the remaining counts without referring to the evidence relating to the dismissed counts. Jackson and Palmer's counsel argued that the government had failed to meet its burden and that Taylor's testimony warranted acquittal.

         The district court instructed the jury that it must determine defendants' guilt or innocence based on the evidence relevant to each charge and that it could not consider the evidence of uncharged acts-such as the evidence of defendants' gang affiliations-for anything other than evidence of motive. After deliberations, the jury returned guilty verdicts on all counts.

         Palmer and Jackson both submitted written motions for judgments of acquittal, arguing that the trial evidence was insufficient to support their convictions. The district court denied both motions.

         C. Sentencing

         1. Palmer

         The district court sentenced Palmer to a total of 175 months in prison consisting of 115 months on the carjacking count followed by a consecutive 60-month sentence for the § 924(c) count. Palmer challenged the application of a two-level enhancement for bodily injury, but the district court rejected Palmer's objection and applied the enhancement.

         2. Jackson

         Jackson argued that the sentences for the two § 924(c) convictions stemming from the double carjacking of the Corollas should run concurrently with one another. Jackson also requested a one-day sentence on his three carjacking convictions, arguing that the substantial mandatory minimum sentences for his § 924(c) convictions warranted a downward departure. Jackson also argued that a Guidelines sentence would constitute cruel and unusual punishment in violation of the Eighth Amendment in light of his youth. Jackson's attorney asked the court to consider Jackson's mental health, age, poor upbringing, and history of drug use and dependency, and also ...


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