United States v. Rodney Mack, Jr.
2013 U.S. App. LEXIS 18581
| 6th Cir. | 2013Background
- Defendant Rodney B. Mack, Jr. convicted after jury trial for three counts each of aiding and abetting carjacking (18 U.S.C. § 2119 & § 2), Hobbs Act robbery (18 U.S.C. § 1951 & § 2), and § 924(c) firearm offenses; sentences affirmed on appeal.
- Three similar pizza-delivery robberies/carjackings occurred in Knoxville on July 23, 28, and 30, 2009; victims identified the shorter robber as Mack with high confidence in two incidents.
- Stolen cell phones from earlier robberies were used to place later pizza orders; police recovered victims’ cars near defendant’s residence and seized clothing and two stolen cell phones from his apartment.
- Firearm used was not recovered, but victims testified to brandishing and one to racking the slide; forensic prints were inconclusive.
- On appeal the court reviewed: admission of a Georgia prior-act under Fed. R. Evid. 404(b); sufficiency and jury instructions on carjacking intent; jury instruction on reasonable doubt; alleged juror contact (Remmer); and whether sentencing on § 924(c) counts must be reopened in light of Alleyne.
Issues
| Issue | Government's Argument | Mack's Argument | Held |
|---|---|---|---|
| Admission of Georgia prior act under Rule 404(b) | Prior act was admissible to prove identity; limited jury instruction given | Evidence was improper propensity evidence and prejudicial | Admission was erroneous but harmless given overwhelming other evidence; conviction affirmed |
| Sufficiency of evidence that defendant had intent to cause death or serious bodily harm (carjacking element) | Circumstantial proof (brandishing, racking slide, physically touching victims, threats) satisfied brandishing-plus or other means of proving intent | Government failed to prove brandishing-plus or intent beyond mere brandishing | Evidence sufficient; denial of Rule 29 motion affirmed |
| Jury instruction on carjacking intent and reasonable doubt | Instructions adequately described intent element and used proper Sixth Circuit pattern reasonable-doubt language | Instructions were incomplete or inappropriate (no Fekete brandishing-plus clarification; objection to wording of reasonable doubt) | No plain error: instructions adequate when read as a whole; no reversal |
| Alleyne challenge to § 924(c) sentencing (brandishing increases mandatory minimum; consecutive 924(c) terms) | Any Alleyne error was harmless because record would have supported jury finding of brandishing; Almendarez-Torres remains controlling for prior-conviction element | Alleyne requires jury finding of brandishing; consecutive 25-year enhancements require jury finding of prior § 924(c) conviction | Alleyne error was plain but harmless beyond a reasonable doubt; Almendarez-Torres still controls; § 924(c) sentences affirmed |
Key Cases Cited
- United States v. Clay, 667 F.3d 689 (6th Cir. 2012) (three-step Rule 404(b) test and standard of review)
- Huddleston v. United States, 485 U.S. 681 (1988) (government need not prove prior bad act by preponderance but must show sufficient evidence the act occurred)
- United States v. Fekete, 535 F.3d 471 (6th Cir. 2008) (brandishing-plus test for § 2119 intent)
- Holloway v. United States, 526 U.S. 1 (1999) (brandishing alone insufficient for § 2119 intent)
- United States v. Washington, 714 F.3d 962 (6th Cir. 2013) (physical touching or direct proof firearm was loaded satisfies § 2119 intent)
- Neder v. United States, 527 U.S. 1 (1999) (harmless-error framework for omitted elements)
- Recuenco v. United States, 548 U.S. 212 (2006) (failure to submit sentencing factor to jury is subject to harmless-error review)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing punishment beyond statutory maximum must be found by jury)
- Almendarez-Torres v. United States, 523 U.S. 224 (1998) (prior conviction exception to jury-trial requirement)
- United States v. Semrau, 693 F.3d 510 (6th Cir. 2012) (plain-error review for unpreserved jury-instruction challenges)