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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