Saturday, February 20, 2016

Sixth Circuit Finds No Remmer Violation and Rejects Johnson Challenge in Death Penalty Appeal

In United States v. Taylor, a jury in the Eastern District of Tennessee convicted Defendant Rejon Taylor of carjacking and kidnapping that both resulted in death and of using a firearm to commit murder while committing the referenced offenses. The jury recommended a death sentence, which the district court imposed.
One of the more interesting issues Taylor raised on appeal was his claim that the district court should have more strenuously questioned a juror who had admittedly heard a newscast replaying certain recorded calls he made from jail, including one call where he referred to the jurors as “racist rednecks.”  After the Government attempted to introduce such statements in Taylor’s sentencing, Taylor moved for a mistrial and asked the district court to conduct a Remmer hearing and question each juror individual about their exposure to the remark.  The district court agreed with Taylor’s request to interview the jurors, and it subsequently interviewed each juror privately without counsel.  In conducting the interviews, the district court asked all but one of the jurors if they had seen the newscast and whether it would affect their decisions.
Based on the jurors’ responses, Taylor subsequently moved for a mistrial, or, in the alternative, the opportunity to question the jurors.  The district court denied both motions.
On appeal, the Sixth Circuit found that the district court did not abuse its discretion by declining to ask one of the jurors explicitly about her exposure to Taylor’s “racist redneck” remark, although it found that “an explicit question certainly would have been preferable.”  In the Court’s opinion, while a failure to conduct a Remmer hearing is “flatly unconstitutional,” the district court will have some leeway in how conducts the hearing.  In this case, the Court held the district court did not abuse its discretion because it did not ask certain questions to a particular juror.
After the Court heard oral argument on Taylor’s appeal, the Supreme Court issued its opinion in Johnson v. United States, striking down the residual clause of the ACCA as void for vagueness.  In a supplemental brief, Taylor challenged the constitutionality of 18 U.S.C. § 924(c)(3)(B) by claiming its definition of “crime of violence” was also unconstitutional under Johnson.  The Court disagreed, finding that the subsection cited by Taylor was “considerably narrower” than the ACCA residual clause invalidated by the Supreme Court in Johnson.  An important distinction for the Court was the fact that while the ACCA residual clause merely required conduct presenting “serious potential risk of physical injury to another,” § 924(c)(3)(B) required that the act “by its nature, involve[] a substantial risk that physical force against the person or property of any other may be used in the course of committing the offense.”  Further, the Court found that, unlike the ACCA residual clause, § 924(c)(3)(B) was not linked to a “confusing set of examples,” such as burglary and arson.  Finally, the Court reached its conclusion despite the fact that both the Seventh and Ninth Circuits previously struck down 18 U.S.C. § 16(b), which, as the Court conceded, contains language that is “identical to § 924(c)(3)(B) in all material respects….”
Judge White, who issued an opinion concurring in part and dissenting in part, would have reversed Taylor’s conviction and remanded the case for a Remmer hearing.  In Judge White’s opinion,  Taylor’s comment about the jury had a likelihood of affecting his sentence and required that the district court afford Taylor a meaningful opportunity to prove bias.  Additionally, Judge White would have held that § 924(c)(3)(B) was void for vagueness, vacated Taylor’s convictions, and remanded the matter for resentencing.

The Court’s decision in Taylor reflects the continuing impact of the Johnson decision.  In addition, since the Seventh and Ninth Circuits reached different conclusions about the same language, albeit in a different statute, this matter is perhaps ripe for further review by the Supreme Court.

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