913 F.3d 789
8th Cir.2019Background
- On Oct. 21, 2016, Daniel Jackson and co-defendant Jason Centeno robbed Citizens State Bank of Hopkinton, IA; Jackson restrained tellers with zip ties and displayed a knife while Centeno brandished a .38 revolver.
- Jackson’s DNA was found on zip ties dropped during the robbery; the pair fled the state, were later arrested in Florida, and charged in a four-count Superseding Indictment (armed bank robbery, § 924(c) aiding and abetting, and related conspiracies).
- Prior to trial the government sought to admit three Facebook videos Jackson had sent days before the robbery showing Jackson and Centeno firing the revolver, Jackson displaying ammunition and the gun, and a Messenger exchange where Jackson said he was “bout to do some real shit” and replied "Bank" and "Robbing."
- The district court admitted the videos as intrinsic evidence (or alternatively under Rule 404(b)); defense objected pretrial but the court denied exclusion.
- At trial the court gave jointly proposed jury instructions on aiding and abetting and on the § 924(c) element (use/carry/brandish); neither party objected to the final instructions they had proposed.
- Jackson was convicted on all counts and sentenced to 180 months; he appealed arguing (1) improper admission of the Facebook videos and (2) the aiding-and-abetting § 924(c) instruction failed to require advance knowledge of firearm use.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of Facebook videos | Videos were unfairly prejudicial and should be excluded under FRE 403 and 404(b) | Videos were intrinsic or admissible under 404(b); they proved knowledge, possession, and planning | Affirmed: videos were intrinsic evidence tending to prove elements and not unfairly prejudicial |
| Aiding-and-abetting § 924(c) instruction | Instruction failed to require that Jackson knew in advance a confederate would use/brandish a gun | Instruction adequately tracked conduct and Jackson had requested the instruction | Affirmed as unreviewable/waived: Jackson proposed and did not object to the instruction, so he cannot challenge it on appeal |
Key Cases Cited
- United States v. Phelps, 168 F.3d 1048 (8th Cir. 1999) (other-crime evidence admissible when "so blended or connected" to charged offense)
- United States v. Swinton, 75 F.3d 374 (8th Cir. 1996) (same rule on intrinsic evidence)
- United States v. Engler, 521 F.3d 965 (8th Cir. 2008) (abuse-of-discretion standard for evidentiary rulings)
- United States v. McCracken, 110 F.3d 535 (8th Cir. 1997) (standards for admission of other-act evidence)
- United States v. Brooks, 715 F.3d 1069 (8th Cir. 2013) (distinguishing prejudicial firearm imagery decisions)
- Rosemond v. United States, 134 S. Ct. 1240 (Sup. Ct.) (advance-knowledge requirement for accomplice liability under § 924(c))
- United States v. McArthur, 850 F.3d 925 (8th Cir. 2017) (elements required to prove aiding and abetting liability under § 924(c))
- United States v. Rose, 104 F.3d 1408 (1st Cir. 1997) (discussed regarding prejudicial firearm imagery)
- United States v. Wisecarver, 598 F.3d 982 (8th Cir. 2010) (waiver of appellate review when party fails to object)
- United States v. Mariano, 729 F.3d 874 (8th Cir. 2013) (defendant who requests an instruction waives later challenge)
- United States v. Tillman, 765 F.3d 831 (8th Cir. 2014) (same waiver principle)