UNITED STATES OF AMERICA, Aрpellee, v. KERONN MILLER, aka Fresh, TYQUAN LUCIEN, aka TQ, aka Frogger, Defendants, DOMINIQUE MACK, aka Lil Sweets, Defendant-Appellant.
No. 16-3734-cr
United States Court of Appeals For the Second Circuit
DECIDED: APRIL 2, 2020
AUGUST TERM, 2018; ARGUED: FEBRUARY 19, 2019
In the United States Court of Appeals For the Second Circuit
AUGUST TERM, 2018
ARGUED: FEBRUARY 19, 2019
DECIDED: APRIL 2, 2020
No. 16-3734-cr
UNITED STATES OF AMERICA, Appellee, v. KERONN MILLER, aka Fresh, TYQUAN LUCIEN, aka TQ, aka Frogger, Defendants, DOMINIQUE MACK, aka Lil Sweets, Defendant-Appellant.
Appeal from the United States District Court for the District of Connecticut.
No. 3:13-cr-00054 (MPS) – Michael P. Shea, Judge.
Before: WALKER and LIVINGSTON, Circuit Judges, and FAILLA, District Judge.*
Defendant Dominique Mack appeals from a judgment entered in the United States District Court for the District of Connecticut following a jury trial before Michael P. Shea, Judge, convicting him of conspiracy to commit witness tampering related to the death of Ian Francis, in violation of
BRIAN P. LEAMING (Jennifer R. Laraia, Marc H. Silvermаn, on the brief) Assistant United States Attorneys, for John H. Durham, United States Attorney for the District of Connecticut, for Appellee.
JEREMIAH DONOVAN, Old Saybrook, CT, for Defendant-Appellant.
Defendant Dominique Mack appeals from a judgment entered in the United States District Court for the District of Connecticut following a jury trial before Michael P. Shea, Judge, convicting him of conspiracy to commit witness tampering related to the death of Ian Francis, in violation of
BACKGROUND
At trial, the government argued that Mack killed Francis in order to avoid being arrested. Although Mack was indicted on September 15, 2010, along with 32 others, law enforcement could not locate him and turned to Breann Wynter, another defendant named in the indictment, for assistance. Wynter hoped that by helping the government locate Mack, she might avoid a ten-year mandatory minimum sentence. Wynter was dating Francis, Mack‘s close friend. Wynter and Francis, assuming that Mack understood that his arrest was inevitable, hoped that Mack would be amenable to the following proposal: in exchange for $1,000 or $1,500, Mack would tell Francis and Wynter where he would be at a specific time, so that Wynter could tell law enforcement where Mack could be found. Francis proposed this arrangement to Mack twice, but Mack neither accepted nor rejected it. Mack never gave Francis or Wynter the requested information.
On December 21, 2010, at around 8:20 p.m., Keronn Millеr, one of Mack‘s associates, was riding in a car with Francis. Miller told Francis to pull over so Miller could urinate. Moments later, a masked gunman fired multiple shots from a Ruger 9mm firearm into the car. When Miller returned to the car, he found Francis shot but alive and on the phone with a 911 dispatcher. He then drove Francis to the hospital. Francis died from his injuries on January 15, 2011. Mack and Miller were indicted for conspiring to commit witness tampering by murdering Francis. In advance of Miller‘s scheduled trial on that indictment, the government disclosed its witness list, which included Jernigan, another of Mack‘s close friends.
On a superseding indictment, the government offered evidence that while incarcerated at the Wyatt Detention Center in Rhode Island, Mack conspired to kill Jernigan to prevent him from testifying. The government relied heavily on testimony from Tyquan Lucien, who also was incarcerated at Wyatt and participated in the Jernigan conspiracy. Lucien told Mack
On April 27, 2016, the jury convicted Mack on two charges of conspiracy to commit witness tampering by first-degree murder and on two firearms charges. On November 1, 2016, the district court sentenced Mack to life imprisonment for each conspiracy and the statutory maximum penalty of ten years’ imprisonment for each firearms conviction, all sentences to run concurrently. This appeal followed.
DISCUSSION
On appeal, Mack attacks his conviction and sentence, arguing primarily that the district court: (i) failed to instruct the jury on an essential element of his firearms offenses; (ii) erred in admitting hearsay declarations under
I. The Jury Instructions
At trial, the district court instructed the jury that to satisfy the mens rea element for Mack‘s firearms charges under
In Rehaif, the Supreme Court addressed whether a noncitizen had to know his immigration status to be convicted under
courts to decide whether the error was harmless. As in Rehaif, and as the government concedes, the district court‘s jury instructions in Mack‘s case were clearly erroneous in their omission of the government‘s obligation to prove Mack‘s knowledge of his status as a former felon.
Examining the question through the plain-error lens, Mack and the government agree that the first two prongs of plain-error review are satisfied. They disagree, however, on the effect of those erroneous jury instructions. Accordingly, we focus on the third and fourth prongs of plain-error review.
In assessing the effect of the erroneous jury instructions on Mack‘s substantial rights, we consider “the weight of [the] trial evidence bearing on the omitted element” and whether the omitted element was “essentially uncontroverted.”15 We ask whether we can conclude, beyond a reasonable doubt, that a properly-instructed jury would have returned the same verdict.16 In answering this question, we appropriately limit ourselves to the evidence actually presented to the jury.17
To find Mack guilty of a violation of
convicted of a felony, or “a crime punishable by imprisonment for a term exceeding one year.” It is customary for a defendant in a case like Mack‘s to stipulate to the existence of his prior felony in order to prevent its details (including the duration of the sentence) from being placed before the jury. At trial, Mack entered into such a stipulation,18 which did not mention the
The government now asks us to rely on Mack‘s stipulation, as well as his failure to contest scienter, to conclude that the jury, if properly instructed, would have still found Mack guilty. We acknowledge that, given the rights to appointed counsel, effective assistance of counsel,19 and due process,20 it is highly improbable that a person could be convicted of a felony without being aware that his possible sentence would exceed one year‘s imprisonment. We also recognize that Mack and his counsel never suggested to the jury that Mack was unaware that his prior conviction carried a potential sentence of over one year‘s imprisonment. This differs Mack‘s case from United States v. Balde, where we found that the defendant might not have known his
is a difficult one, given the paucity of factual development at trial pertaining to a question that was not discerned before Rehaif was decided. Accordingly, we decline to decide whether a properly-instructed jury would have found that Mack was aware of his membership in
Under the circumstances, we do not think that rejecting Mack‘s argument will seriously affect the fairness, integrity, or public reputation of judicial proceedings. To the contrary, we think that accepting it would have that effect. Because Mack stipulated to his
Mack for correction and subsequently adopted and relied upon by the district court during sentencing. The PSR shows that Mack‘s prior conviction, for the unlawful theft and alteration of a firearm, resulted in a total effective sentence of ten years’ imprisonment, with execution suspended after three years, which removes any doubt that Mack was aware of his membership in
Therefore, the district court‘s erroneous jury instructions did not rise to the level of reversible plain error.24
II. Admissibility of Farmer‘s Testimony under Rule 804(b)(3)
Because Miller did not testify at trial, the government proffered testimony from Brandyn Farmer as to statements Miller made to Farmer about Francis‘s murder. Mack objected to this testimony, which covered Miller‘s statements that Miller had lured Francis to the spot where he was shot, that Miller had been present when the shooting occurred, and that Mack was the shooter. After carefully hearing from both sides, the district court permitted the testimony for the truth of Miller‘s statements under
We review the district court‘s
A. Miller was an “unavailable” witness.
At issue in this case is the manner in which Miller‘s
A ruling regarding privilege “can be made . . . with or without the witness being haled into court.”34 In United States v. Williams, we addressed a situation in which the district court relied on representations of counsel regarding their clients’ intention to rely on their
representations.35 Counsel‘s representations were provided to the district court roughly one month before the district court determined that counsel‘s clients were unavailable within the meaning of
B. The district court did not clearly err in failing to conclude that the government procured Miller‘s unavailability.
Mack next argues that, even if Miller were unavailable, Miller‘s statements were nonetheless inadmissible under
of the district court proceedings; and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.”38
Miller‘s plea agreement included an unusual provision specifying that the agreed-upon sentencing range would not be binding if Miller were to testify “about the subject matter which forms the basis of the superseding indictment in this case, and provide testimony inconsistent with or in addition to the facts proffered and agreed to by the defendant as part of the plea colloquy.”39 The рlea agreement specified facts regarding the Francis shooting, including that Miller enticed Francis to a location where he knew he would be shot, “knowing and intending that another person or persons who the defendant assisted wanted to prevent a person from communicating with federal law enforcement and/or to prevent the attendance of a person at an official federal proceeding.”40
Importantly, Miller‘s plea agreement did not say anything about Mack being the shooter or otherwise identify the shooter. Although the statements to Farmer that Miller saw Mack shoot Francis or knew that Mack was the shooter were not inconsistent with the facts specified in the pleа agreement, they included additional facts. Accordingly, Miller could not have presented this testimony without breaching his plea agreement and jeopardizing the agreed-upon sentencing range, thereby motivating him to invoke his
We are deeply troubled by the government‘s use of such a provision, which went beyond the typical requirement that Miller‘s potential future testimony be truthful and instead significantly constricted such testimony by requiring that it be identical to the facts elicited in his proffer. Nevertheless, because the objection
was not raised below and our review is limited to plain error, we need not reach the question of whether the government procured Miller‘s availability in this case. Here, Miller
C. Miller‘s statements about which Farmer was permitted to testify were against Miller‘s interest and were credible.
We are likewise unpersuaded by Mack‘s argument that the district court incorrectly found Miller‘s statements to be statements against his interest and “supported by corroborating circumstances that clearly indicate [their] trustworthiness.”41 The district judge did not abuse his discretion in reaching either of these conclusions.
I. Miller‘s statements were against his penal interest.
Mack first argues that Miller‘s statements to Farmer were not against his penal interest because it was in Miller‘s interest to falsely implicate Mack. However, “[w]hether a challenged statement is sufficiently self-inculpatory can only be answered by viewing it in context. Thus, this determination must be made on a case-by-case basis.”42 A statement is against penal interest if “a reasonable person in the declarant‘s shoes would perceive the statement as detrimental to his or her own penal interest.”43 “This exception rests on the notion that ‘reasonable
people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true.‘”44
The district court considered each admitted statement individually and provided specific reasons for why each one incriminated Miller. Principally, the district court explained that Miller‘s statement that he saw Mack pull the trigger, if “elicited after or together with Miller‘s statement that he drove Francis to Sigourney Street so that Mack could shoot Francis . . . does inculpate Miller because it tends to show that the conspiracy described in the first statement was actually carried out and that the conspiracy actually caused the death of Ian Francis.”45 Because statements are self-inculpatory when they describe acts the declarant and defendant “committed jointly,”46 we agree with the district court. Wе therefore conclude that the district court did not abuse its discretion in finding the statements to be against Miller‘s penal interest.
II. Miller‘s statements were supported by corroborating circumstances.
Mack next argues that Miller‘s statements were not “supported by corroborating circumstances that clearly indicate [their] trustworthiness,” as required by
Here, Miller‘s statements were corroborated by the testimony of Anthony Brinson, Francis‘s nephew, as well as by Miller‘s plea agreement and colloquy. Brinson stated that Francis told him, after he was shot, that “Miller told Francis to
pull over on Sigourney Street so that Miller could urinate” and that “Miller got out of the car, walked by a masked man – and made eye contact with him – before the masked man began shooting into Francis‘s vehicle.”48 Miller‘s statements to Farmer were also consistent with Miller‘s representations in his plea agreement and colloquy.
Mack attacks Farmer‘s credibility on the basis of his past criminal convictions and as a “jailhouse informant” who only remembered key aspects of his testimony when being prepared for trial. But Farmer‘s credibility was for the jury to assess. Such credibility attacks have no bearing on whether Miller‘s statements to Farmer were trustworthy, the appropriate
D. Any error by the district court in applying Rule 804 would have been harmless.
Even if the district court had erred in its
Like Farmer‘s recounting of Miller‘s statements, compelling testimony from Lucien supported the conclusion that Mack participated in the conspiracy to murder Francis. Lucien testified about time spent with Mack, Jernigan, and another man the day before the Francis shooting. Specifically, he said that Mack was angry with Francis because Francis and Wynter were “trying to turn him in”51 and that Mack said Francis “got to go.”52 Lucien testified further that, in an effort to gain Mack‘s respect, Lucien offered to “kill Ian Francis for [Mack],” even though Lucien did not know who Francis was.53 Mack “laughed and he said [Jones] going to do it“; Mack said that Lucien should not be involved because he would be “too hyper” and “might fuck up.”54 Lucien also testified that Mack instructed Jernigan to get a duffel bag from the closet and that Mack pulled a 9mm Ruger gun out of the duffel bag.
It matters not that Mack told the group that Jones would be the shooter, whereas Miller said the shooter was Mack. Either way, Mack conspired to murder Francis.
III. Admissibility of Government Exhibit 65
Mack challenges the admissibility of government exhibit 65 (“GE 65“), a summary chart of phone bills pertaining to phone calls and text messages from December 21, 2010. The chart, entitled “Mack, Miller, Francis, Jones, and Jernigan Timeline, 21 December 2010,” depicted the fact of certain communications
between the five men on the night that Francis was shot. It identified each man by his name and picture and indicated whether each communication was a call or text, the time of the communication, and whо initiated it. The summarized phone bills did not identify Mack, Miller, Francis, Jones, or Jernigan by name or image, but additional evidence in the record linked these men to the phone numbers appearing on the bills.
GE 65 was admitted as substantive evidence pursuant to
On appeal, Mack argues that GE 65 was not admissible under
Mack also objects to the pictures of Mack, Miller, Francis, Jones, and Jernigan that were included in GE 65, arguing that they looked like “mug shots” and “made their subjects look like thugs.” Appellant‘s Br. at 67. Although at least one of the pictures was a booking photograph, Mack did not alert the district court to any potential prejudice these pictures might cause. The district court focused only on whether the pictures had been produced to the defense. Based on this record, we discern no basis to hold that the possible prejudice from the pictures outweighed GE 65‘s probative value in clarifying the timeline of calls and texts revеaled in the phone bills. Therefore, in no respect did the district court abuse its discretion by admitting GE 65. In any event, had there been error in admitting the chart, it was harmless. GE 65 was admitted to prove
IV. Sentencing Issues
Mack was convicted of two counts of conspiracy to commit witness tampering by first-degree murder, in violation of
First, Mack challenges the district court‘s statutory analysis, arguing that a life sentence is not available against defendants who conspire to commit but ultimately are not responsible for first-degree murder. We disagree. Section
Committing witness tampering by killing or attempting to kill an individual is prohibited by
Second, Mack argues that the district court erroneously increased Mack‘s sentence “by making its own factual finding that Mack was responsible for a killing.” Appellant‘s Br. at 78. But the district court did not do that. Rather, it was the jury that determined that Mack had conspired, with respect to both Francis and Jernigan, with the object of committing witness tampering by first-degree murder.58 Therefore, this challenge is without merit.
Third and finally, Mack argues that his life sentence violates the
offenders because
CONCLUSION
For these reasons, and for those set forth in the accompanying summary order, the judgment of conviction and sentence are AFFIRMED.