United States v. Miller

954 F.3d 551

UNITED STATES of America, Appellee,

v.Keronn MILLER, aka Fresh, Tyquan Lucien, aka TQ, aka Frogger, Defendants,Dominique Mack, aka Lil Sweets, Defendant-Appellant.

No. 16-3734-cr

August Term, 2018

United States Court of Appeals, Second Circuit.

Argued: February 19, 2019

Decided: April 2, 2020

Brian P. Leaming (Jennifer R. Laraia, Marc H. Silverman, 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.

Before: Walker and Livingston, Circuit Judges, and Failla, District Judge.^*

John M. Walker, Jr., Circuit 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 18 U.S.C. § 1512(k) ; conspiracy to commit witness tampering by planning to murder Charles Jernigan, in violation of 18 U.S.C. § 1512(k) ; and two counts of unlawful possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).⁴ The district court sentenced Mack to life imprisonment for each of the conspiracy convictions and ten years’ imprisonment for each of the firearm possession convictions, all sentences to run concurrently. This opinion addresses Mack’s claims on appeal 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 Federal Rule of Evidence 804(b)(3) ; (iii) erred in admitting a summary chart under Federal Rule of Evidence 1006 ; and (iv) was not required to impose life sentences for Mack’s conspiracy convictions. We reject these arguments and AFFIRM the conviction.⁵

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 Miller, 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 that if Jernigan were arrested, Jernigan might cooperate and testify against Mack. Mack responded, "[I] got to do something about it. Like he got to go."⁶ Lucien himself decided to do something about it. Because he was not able to get out of jail on bond to kill Jernigan, Lucien turned to his cellmate, who volunteered that "his boy" could kill Jernigan.⁷ Unbeknownst to Lucien, his cellmate was an FBI informant. The cellmate arranged for Lucien to meet "his boy," who in fact was an undercover agent. When Lucien met with the agent in the Wyatt visiting area, he gave the agent Jernigan’s home address, which he had received from Mack. Some time later, Lucien told Mack, "I sent my peoples" (referring to the undercover agent), "they came Friday," so that Mack "could know everything’s a go."⁸ During this conversation, Mack confirmed to Lucien that the address that Lucien had given to the agent was the right one.⁹

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 Federal Rule of Evidence 804(b)(3) ; (iii) erred in admitting a summary chart under Federal Rule of Evidence 1006 ; and (iv) was not required to impose life sentences for Mack’s conspiracy convictions. None of these arguments has merit.

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 18 U.S.C. §§ 922(g)(1) and 924(a)(2),¹⁰ the government had to prove only "that the defendant knowingly possessed the firearm."¹¹ The district court did not instruct the jury that the government had to show that Mack knew he was a member of a class of persons forbidden to possess firearms by virtue of his earlier felony conviction. Relying on Rehaif v. United States ,¹² a case decided by the Supreme Court just last term, Mack challenges the adequacy of the jury instructions for his firearms conviction. Because Mack raises his challenge for the first time on appeal, we review for plain error, considering whether "(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings."¹³

In Rehaif , the Supreme Court addressed whether a noncitizen had to know his immigration status to be convicted under 18 U.S.C. § 922(g)(5), which prohibits "an alien ... illegally or unlawfully in the United States" from possessing a firearm. It held that to obtain any conviction under § 922(g), the government must prove that the defendant "knew he belonged to the relevant category of persons barred from possessing a firearm."¹⁴ The Court determined that the district court’s jury instructions to the contrary were erroneous and remanded to allow the lower 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 § 922(g)(1), a properly-instructed jury would have to find, beyond a reasonable doubt, that Mack knew he was a person 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 duration of his sentence or his knowledge of whether he had a felony conviction, and the government proffered no further evidence on his prior conviction or knowledge.

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 § 922(g)(5) qualifying status as "an alien ... illegally or unlawfully in the United States" based on the legal "complexities" of the defendant’s immigration situation and how "hotly contested" scienter was at...