United States v. Marchello Rembert
851 F.3d 836
8th Cir.
2017
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Docket

UNITED STATES оf America, Plaintiff-Appellee v. Marchello REMBERT, Defendant-Appellant

No. 16-2695

United States Court of Appeals, Eighth Circuit.

March 23, 2017

Rehearing and Rehearing En Banc Denied May 1, 2017*

851 F.3d 835

Submitted: January 13, 2017

cause was established where defendant was found at the scene of the crime one night after it occurred, and perfectly fit a description of the suspect‘s “race, height, weight, color of hair, type of hair styling, as well as the precise color of clothing“). But Evans‘s presence near the location of the rape twelve hours later, while waiting for a bus transfer, did not by itself incriminate him, and his response to police questioning was not of an incriminatory or suspiсion-raising nature. (arrestee acted suspiciously by leaving house and driving away without comment despite loud altercation between police and his family members nearby).

The fact that Evans did not have a scar on his abdomen or tattoos on his hands and neck constituted significant exculpatory evidence. These were the essentially defining features of the victim‘s identification of her attacker, and thus the subsequently developed discrepancies were so significant that, unlike in the cases the government cites, they constituted a significant оbstacle to a finding of probable cause. (holding that probable cause existed where arrestee “bore a fair resemblance” to description of suspect, and a witness discovered arrestee‘s identity after believing she saw him a second time); (holding that prоbable cause existed despite inconsistencies between arrestee and the nine-year-old witness‘s description of the suspect‘s height, weight, hair color, facial hair, and shirt color).

Moreover, the officers did not ask the victim to examine Evans‘s abdomen for the scar she described. Although the government argues that the officers could reasonably choose not to ask the victim to examine Evans because she was afraid of him or because he might have tried to intimidate her, we note that the victim herself suggested this course of action. Further, as recounted above, the officers did not closely examine Evans‘s hands and neck for tattoos, did not check whether Evans had a phone matching the number believed by the victim to be her attacker‘s, did not check whether Evans‘s keys would open the door to the apartment building where the rape occurred, and did not ask the manager of the apartment building whether anyone named Octavio or Octovi lived there. Although Sergeant Swoboda reasoned that these inquiries would not necessarily have exonerated Evans, they might have substantially influenced the probable cause determination, and to have conducted these inquiries would not have unduly hampered the performance of the officers’ duties.

We affirm the district court‘s suppression of the firearm evidence on the ground that the officers lacked ‍‌​‌​‌‌​​​​​​‌​‌​​​‌‌‌‌​​‌​​​​‌‌​​‌‌​​​​‌‌‌​​‌‌​‌‍probable cause to arrest Evans. We express no opinion on the question whether a rape in fact occurred.

The order granting the motion to suppress is affirmed.

Counsel who presented argument on behalf of the appellant was Heather Quick, AFPD, of Cedar Rapids, IA.

Counsel who presented argument on behalf of the appellee was Lisa C. Williams, AUSA, of Cedar Rapids, IA.

Before LOKEN, BEAM, and BENTON, Circuit Judges.

BEAM, Circuit Judge.

Marchello Rembert appeals from his conviction and sentence on charges of firearm possession and possession of crack cocaine with intent to distribute. He challenges thе admission of a Facebook video at trial, as well as the district court‘s1 application of the career-offender enhancement at sentencing. We affirm.

I. BACKGROUND

In June 2015, while responding to a complaint of disorderly conduct, Waterloo Police recognized Rembert at the scene as a passenger in an SUV. An officer arrested Rembert on an active warrant and during a search incident to arrest, located a large “wad” of money and individually wrapped clear plastic baggies containing a white substance believed tо be crack cocaine. Before being placed in the police vehicle, Rembert spoke to the driver of the SUV, Trisha Millard. In that conversation, Rembert told Millard that the officer found crack in Rembert‘s pocket.

Once Rembert was secured in the police vehicle, the officer approached Millard who had returned to her vehicle. When Millard told the officer she had a bottle of alcohol in the car, the officer asked Millard to exit the vehicle. Millard told the officer there was a firearm in the SUV and that she had a license to carry a pistol. A search of the SUV revealed a firearm under the driver‘s seat, marijuana in the console, a marijuana blunt in the ashtray and loose marijuana throughout the vehicle. There were two latent prints on the firearm, one of which matched Rembert‘s left index finger and was located on the left side of the firearm above the front edge of the trigger guard.

As part of the investigation, police examined Rembert‘s Facebook page and obtained a video, posted by Rembert in January 2013, depicting Rembert holding a fireаrm in his left hand with his left index finger on the trigger guard (almost identical positioning to the left index fingerprint recovered from the pistol), rapping, and smoking what looks like a marijuana blunt. The video included a caption that read “Real thugz ‘bout dat, get at me. Bang, bang!!!!!!!!!!!!” The government filed a prеtrial motion seeking the admission of this video, claiming it went to “knowledge, intent, absence of mistake, and lack of accident.” Rembert objected to the admission of the video altogether and additionally argued that if the district court admitted the video, at the very least the сaption should be redacted. The government explained that it could not redact the caption without also redacting the information indicating that Rembert posted the video and the date and time it was posted, and further suggested that if Rembert would stipulate that he pоsted the video to his Facebook page, the government would redact all of the information. At trial the district court admitted the video with the caption in place.

A jury convicted Rembert on all charges. At sentencing the district court sentenced Rembert to a total term of imprisonment of 210 months, in part based on the application ‍‌​‌​‌‌​​​​​​‌​‌​​​‌‌‌‌​​‌​​​​‌‌​​‌‌​​​​‌‌‌​​‌‌​‌‍of a career-offender enhancement that relied upon a previous revocation of an extended juvenile jurisdiction charge to support one of the “adult convictions” underlying the enhancement. Rembert appeals, challenging the admission of the video and the use of his juvenile charge revocation to support the career-offender enhancement.

II. DISCUSSION

A. Admission of Facebook Video

A district court‘s ruling under Federal Rule of Evidence 404(b) is reviewed for an abuse of discretion. . A district court‘s admission of prior act evidence will be reversed “only when such evidenсe clearly ha[s] no bearing on the issues in the case and was introduced solely to prove the defendant‘s propensity to commit criminal acts.” . The district court did not abuse its discretion in admitting the Facebook video in this case.

Rembert challenges what he claims to be the government‘s “all or nothing” approach with the admission of the Facebook video. He claims that the imagery presented to the jury was highly prejudicial and had no probative value at trial, focusing especially on the prejudice he claims occurred by playing the entire video. The government indicated prior to trial that it intended to introduce the Facebook video to establish that Rembert‘s touching of the firearm discovered in the vehicle was not accidental, as the placing of the fingerprint was consistent with how Rembert generally (and uniquely) held a firearm. Rembert agrees that the video might show how he holds a firearm but claims the other aspects of the video were highly prejudicial and irrelevant, including the foul language he uses and the caption of the video. It is the latter two aspects—the sound and the caption—that Rembert claims the government should have omitted. He claims only images from the video were necessary to establish the government‘s point and that he should not be prejudiced because of the government‘s technical inability to remove thе caption separate from the date stamp on the video.

The video at issue was relevant on many fronts, and the potential prejudice of the video does not substantially outweigh its probative value. In order to convict Rembert, the government had to show that hе possessed the firearm because he either “knowingly ha[d] direct physical control over [the firearm],” or because he “ha[d] both the power and the intention at a given time to exercise dominion or control over [the firearm].” Eighth Circuit Model Jury Instruction 8.02. “Evidence that a defendant possessed a firearm on a previous occasion is relevant to show knowledge and intent.” . Here, the video images are additionally probative of Rembert‘s knowing and intentional possession of the firearm found in the vehicle. The handling of the firearm in the video was nearly identical to the manner in which Rembert would have handled the firearm found in the vehicle based upon the placement of his prints. His left index fingerprint was found in a specific place, the same area where he is previously seen holding a firearm (or fireаrm-like object) in the video. Too, this video was not overly remote in time to the crime charged. (admitting evidence of a robbery “similar in kind” that occurred about eleven years prior to the charged offense).

Rembert does not articulate how his use of foul language аnd the video‘s caption make the video unfairly prejudicial. The words used on the video ‍‌​‌​‌‌​​​​​​‌​‌​​​‌‌‌‌​​‌​​​​‌‌​​‌‌​​​​‌‌‌​​‌‌​‌‍are to a rap song, not his own, and the caption does not otherwise associate Rembert with any specific category of behavior. It is also important to note that the government offered to omit the caption of the video if Rembert had stipulated that he was the one who posted it, and that he was the one depicted in the video, but Rembert did not stipulate to those conditions. Finally, the district court also gave a limiting instruction regarding the video, which serves as a protection against unfair prejudice. . Certainly the government could have isolated images from the video to show the key images of Rembert needed to prove his knowing and intentional possession of the firearm, and possibly, in hindsight, the playing of the entire video was surplusage. No matter, however, the viewing of the Facebook video in its entirety was not unfairly prejudicial and the district court did not abuse its discretion in allowing the video in evidence.2 .

B. Career-Offender Enhancement

This court reviews de novo a district court‘s determination that a conviction is a crime of violence under the Guidelines. . An individual is subject to the career-offender enhancement if he or she is convicted of two felonies that qualify either as a “crime of violence” or a controlled substance offense. U.S.S.G. § 4B1.1. One of Rembert‘s prior felonies the district court relied upоn in applying the career-offender enhancement in this case was a juvenile conviction for aiding and abetting first-degree robbery that was later revoked and classified as an adult conviction. Rembert argues that the revocation of his Extended Juvenile Jurisdiction (EJJ) for Minnеsota aggravated robbery does not constitute an “adult conviction” for purposes of the career-offender enhancement. He acknowledges that this argument is foreclosed by , but urges that was wrongly decided and should be overruled.

Minnesota‘s process of EJJ was detailed by this court in . Upon revocation of an EJJ case and the imposition of the adult sentеnce, as happened with Rembert:

the offender‘s extended jurisdiction status is terminated and juvenile court jurisdiction is terminated. The ongoing jurisdiction for any adult sanction, other than commitment to the commissioner of corrections, is with the adult court.

Minn. Stat. § 260B.130, subd. 5. The Minnesota Court of Appeals has held on ‍‌​‌​‌‌​​​​​​‌​‌​​​‌‌‌‌​​‌​​​​‌‌​​‌‌​​​​‌‌‌​​‌‌​‌‍multiple occasions that an EJJ adjudication constitutes an adult conviction. . According to , once EJJ is revoked, the defendant is thus no longer in juvenile court and the resulting EJJ adjudication is a predicate conviction under the Armed Career Criminal Act. . Thus, the district court correctly held that the revocation of Rembert‘s EJJ constituted a felony for purposes of the career-offender enhancement in this case. remains the law of this circuit. (“As one panel of this Court cannot overturn the decision of another panel of the Court, we reject [the defendant‘s] challenge as well.“).

III. CONCLUSION

For the reasons stated herein, we affirm.

Notes

1
The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.
2
We have likewise considered Rembert‘s argument submitted in his pro se brief concerning the admission of evidence regarding the nаme and nature of a prior drug conviction and the calculation of his sentence by the district court in light of and find them to be without merit. The evidence of Rembert‘s prior drug conviction was not presented for purposes of proving his status as a felon, but rather to show his intent to distribute crack cocaine, an element of the charge in count 2. (providing evidence of a prior drug conviction is relevant to show ‍‌​‌​‌‌​​​​​​‌​‌​​​‌‌‌‌​​‌​​​​‌‌​​‌‌​​​​‌‌‌​​‌‌​‌‍a defendant‘s knowledge or intent to commit a current crime); . And, the district court properly applied the Guidelines at sentencing. (сoncluding that the Guidelines are not subject to a vagueness challenge under the Fifth Amendment Due Process Clause and, more specifically, that the vagueness holding in Johnson does not apply to the career-offender provisions of the Guidelines); (holding that a conviction for simple robbery under the Minnesota statute is a crime of violence under U.S.S.G. § 4B1.2(a)(1)), cert. denied, .
*
Judge Kelly did not pаrticipate in the consideration or decision of this matter.
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