United States v. Marchello Rembert
851 F.3d 836
| 8th Cir. | 2017Background
- In June 2015 Waterloo police arrested Marchello Rembert in an SUV; during a search they found cash, individually wrapped baggies of suspected crack, and a pistol under the driver’s seat.
- Latent prints on the recovered pistol included Rembert’s left index fingerprint, located above the front edge of the trigger guard.
- Police recovered a January 2013 Facebook video posted by Rembert showing him holding a firearm with his left index finger on the trigger guard, rapping, and appearing to smoke a blunt; the video included an inflammatory caption.
- The government moved to admit the video to prove knowledge, intent, absence of mistake, and lack of accident; Rembert objected and asked in the alternative that the caption be redacted.
- The district court admitted the full video (with caption); a jury convicted Rembert of firearm possession and possession with intent to distribute crack.
- At sentencing the court applied the career-offender enhancement, relying in part on a revoked Extended Juvenile Jurisdiction (EJJ) adjudication for aiding/abetting first-degree robbery that was treated as an adult conviction; Rembert appealed the video admission and the EJJ-based enhancement.
Issues
| Issue | Plaintiff's Argument (Rembert) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Admission of Facebook video (FRE 404(b)) | Video was unfairly prejudicial; audio and caption irrelevant and should have been redacted or only images admitted | Video probative to show knowledge/intent and that fingerprint placement matched how Rembert uniquely held a firearm; offered to redact caption if Rembert stipulated he posted/was depicted | Affirmed — district court did not abuse discretion; probative value not substantially outweighed prejudice; limiting instruction also given |
| Use of revoked EJJ adjudication for career-offender enhancement (U.S.S.G. § 4B1.1) | Revocation of EJJ should not count as an "adult conviction" for career-offender purposes; Nash was wrongly decided | Under circuit precedent (Nash) an EJJ revocation that results in adult sentencing constitutes a predicate adult conviction | Affirmed — Nash controls and EJJ revocation may be treated as an adult conviction for the enhancement |
Key Cases Cited
- United States v. Turner, 583 F.3d 1062 (8th Cir. 2009) (standard of review for FRE 404(b) rulings)
- United States v. Benitez, 531 F.3d 711 (8th Cir. 2008) (prior-act evidence reversible only when introduced solely to show propensity)
- United States v. Walker, 470 F.3d 1271 (8th Cir. 2006) (prior firearm possession relevant to knowledge and intent)
- United States v. Bassett, 762 F.3d 681 (8th Cir. 2014) (admission of similar-incident evidence not barred by temporal remoteness alone)
- United States v. Maid, 772 F.3d 1118 (8th Cir. 2014) (de novo review for whether conviction is a crime of violence under Guidelines)
- United States v. Nash, 627 F.3d 693 (8th Cir. 2010) (EJJ revocation treated as adult conviction for predicate purposes)
- United States v. Meeks, 639 F.3d 522 (8th Cir. 2011) (one panel cannot overrule another on circuit precedent)
- United States v. Armstrong, 782 F.3d 1028 (8th Cir. 2015) (prior drug convictions admissible to show intent/knowledge)
- United States v. Jandreau, 611 F.3d 922 (8th Cir. 2010) (similar rule on admission of prior drug convictions)
- Beckles v. United States, 137 S. Ct. 886 (2017) (Guidelines not subject to vagueness challenge under Johnson)