954 F.3d 551
2d Cir.2020Background
- Mack was indicted with others for conspiring to obstruct justice by murdering witnesses tied to a federal investigation; Ian Francis was shot on Dec. 21, 2010 and later died; Mack was accused of orchestrating/participating in that killing.
- Law enforcement also presented evidence that, while jailed, Mack conspired to have Charles Jernigan killed to prevent testimony; an incarcerated informant (Lucien) and an undercover agent corroborated parts of that plot.
- Key testimonial evidence included jailhouse testimony from Tyquan Lucien and hearsay recounting by Brandyn Farmer of statements made by co-defendant Keronn Miller (who invoked the Fifth and did not testify).
- The government introduced a summary chart (GE 65) of December 21 phone records to establish a communications timeline linking Mack and others.
- A jury convicted Mack of two counts of conspiracy to commit witness tampering by murder (18 U.S.C. §1512(k)) and two counts of felon-in-possession (18 U.S.C. §§922(g)(1), 924(a)(2)); the district court sentenced Mack to life on each conspiracy count and concurrent 10-year terms on the firearms counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instruction for §922(g) scienter (Rehaif) | Gov't: Omission was error but harmless; stipulation and PSR show Mack knew his felon status. | Mack: District court failed to instruct jury that gov't must prove he knew he belonged to the felon class (Rehaif). | Court: Instructional omission was error but not reversible plain error; considered PSR and context and found no need to reverse. |
| Admissibility of Miller's statements under Fed. R. Evid. 804(b)(3) | Gov't: Miller was unavailable (invoked Fifth); statements were against penal interest and corroborated (Farmer, Brinson, plea colloquy). | Mack: Miller was not truly unavailable; government procured unavailability via plea agreement; statements lacked trustworthiness. | Court: No abuse of discretion; even if borderline, any error was not plain and would be harmless given other evidence (Lucien, plea facts). |
| Admissibility of summary chart (Fed. R. Evid. 1006) | Gov't: Chart was a permissible summary of voluminous phone records and aided jury; identifying photos and names were supported elsewhere. | Mack: Chart summarized only a few pages, was selective, omitted durations and numbers, and pictures were prejudicial. | Court: No abuse of discretion; chart permissible and any error harmless given other evidence. |
| Sentencing under §1512(k) and Eighth Amendment | Gov't: §1512(k) adopts penalties for the underlying substantive offense; conspiracy to effect first-degree murder is punishable by life or death, so life sentence lawful. | Mack: Life sentence improper because conspiracies that did not produce an actual homicide cannot carry life; also Eighth Amendment individualized-sentencing challenge. | Court: Life sentence lawful under §1512(k) and jury found conspiracy to first-degree murder; Eighth Amendment challenge rejected (adult offender, not juvenile precedents). |
Key Cases Cited
- Rehaif v. United States, 139 S. Ct. 2191 (Sup. Ct. 2019) (scienter requires knowledge of prohibited status for §922(g) offenses)
- Neder v. United States, 527 U.S. 1 (1999) (harmless-error framework for omitted jury-element instructions)
- United States v. Williams, 927 F.2d 95 (2d Cir. 1991) (district court may rely on counsel's representations re: witness invoking Fifth for Rule 804 unavailability)
- United States v. Lombardozzi, 491 F.3d 61 (2d Cir. 2007) (standard for harmless error review of hearsay admissions)
- United States v. Saget, 377 F.3d 223 (2d Cir. 2004) (statement-against-interest analysis under Rule 804(b)(3))
- Old Chief v. United States, 519 U.S. 172 (1997) (use of stipulation to avoid prejudicial proof of prior convictions)
- United States v. Pinto, 850 F.2d 927 (2d Cir. 1988) (admissibility standard for Rule 1006 summaries)