16

- 3734

- cr United States v. Dominique Mack, et al

. 

## In the 1 

# United States Court of Appeals

2



## For the Second Circuit 3

________ 4

5

A UGUST T ERM

, 201 8 6

7

A RGUED : F EBRUARY 19, 2019 8

D ECIDED : A P R I L 2

, 20 20 9

10

No. 16

- 3734

- cr 11

12

U NITED S TATES OF A MERICA

, 13 Appell ee

, 14

15

v. 16

17

K ERONN M ILLER

, aka Fresh

, T YQUAN L UCIEN

, aka TQ, aka Frogger

, 18 Defendant s, 19

20

D OMINIQUE M ACK , aka Lil Sweets, 21 Defendant

- Appellant

. 22

_ _______ 23

24 Appeal from the United States District Court 25

for the District of Connecticut

. 26

No. 3:13

- cr

- 00054 (MPS)

– Michael P. Shea

, Judge

. 27

________ 28

29

Before: W ALKER and L IVINGSTON

, Circuit Judges , and F AILLA

, District Judge. * 30

________ 31

32

* Judge Katherine Polk Failla, of the United States District Court for the Southern District
of New York, sitting by designation.2 No

. 16

- 3734

- cr

Defendant Dominique Mack appeals from a judgment entered in the 1

United States District Court for the District of Connecticut following a jury trial 2

before Michael P. Shea

, Judge , convicting him of conspiracy to commit witness 3

tampering related to the death of Ian Francis

, in violation of 18 U.S.C. § 1512(k) ; 4

conspiracy to commit witness tampering by planning to murder Charles 5

Jernigan , in violation of 18 U.S.C. § 1512(k) ; and two counts of unlawful 6

possession of a firearm by a felon , in violation of 18 U.S.C. §§ 922(g)(1) and 7

924(a)( 2 )

. 2 The district court sentenced Mack to life imprisonment for each of the 8

conspiracy convictions and ten years’ imprisonment for each of the firearm 9

possession convictions, all sentences to run concurrently. This opinion addresses 10

Mack’s claims on appeal that the district court : (i) failed to instruct the jury on an 11

essential element of his firearms offenses; (ii) erred in admitting hearsay 12

declarations under Federal Rule of Evidence 804(b)(3); (iii) erred in admitting a 13

s ummary chart under Federal Rule of Evidence 1006 ; and (iv) was not required 14

to impose life sentences for Mack’s conspiracy convictions . We reject these 15

arguments and AFFIRM the conviction. 3 16

________ 17

B RIAN P. L EAMING (Jennifer R. Laraia , Marc H. Silverman, on the 18

brief ) Assistant United States Attorneys, for John H. Durham, 19

United States Attorney for the District of Connecticut

, for 20

Appell ee

. 21

J EREMIAH D ONOVAN

, Old Saybrook, CT

, for Defendant

22

Appell ant

. 23

________ 24

2 Mack was acquitted of two counts of witness tampering by first

- degree murder of Francis,

in violation of 18 U.S.C. §§ 2, 1512 (a)(1)(A)

, and 1512(a)(1)(C).

3 Mack’s remaining arguments on appeal are addressed in a summary order filed
simultaneously with this opinion.3 No

. 16

- 3734

- cr

J OHN M. W ALKER

, J R

. , Circuit Judge : 1

Defendant Dominique Mack appeals from a judgment entered in the 2

United States District Court for the District of Connecticut following a jury trial 3

before Michael P. Shea

, Judge , convicting him of conspiracy to commit witness 4

tampering related to the death of Ian Francis

, in violation of 18 U.S.C. § 1512(k) ; 5

conspiracy to commit witness tampering by planning to murder Charles 6

Jernigan , in violation of 18 U.S.C. § 1512(k) ; and two counts of unlawful 7

possession of a firearm by a felon , in violation of 18 U.S.C. §§ 922(g)(1) and 8

924(a)( 2 )

. 4 The district court sentenced Mack to life imprisonment for each of the 9

conspiracy convictions and ten years’ imprisonment for each of the firearm 10

possession convictions, all sentences to run co ncurrently. This opinion addresses 11

Mack’s claims on appeal that the district court : (i) failed to instruct the jury on an 12

essential element of his firearm s offenses; (ii) erred in admitting hearsay 13

declarations under Federal Rule of Evidence 804(b)(3); (iii) erred in admitting a 14

summary chart under Federal Rule of Evidence 1006 ; and (iv) was not required 15

to impose life sentences for Mack’s conspiracy convictions . We reject these 16

arguments and AFFIRM the convict ion. 5 17

BACKGROUND 18

At trial, the government argued that Mack killed Francis in order to avoid 19

being arrested. Although Mack was indicted on September 15, 2010

, along with 20

32 others, law enforcement could not locate him and turned to Breann Wynter, 21

another defendant named in the indictment, for assistance. Wynter hoped that by 22

helping the government locate Mack, she might avoid a ten

- year mandatory 23

minimum sente nce. Wynter was dating Francis, Mack’s close friend. Wynter and 24

4 Mack was acquitted of two counts of witness tampering by first

- degree murder of Francis,

in violation of 18 U. S.C. §§ 2, 1512(a)(1)(A)

, and 1512(a)(1)(C).

5 Mack’s remaining arguments on appeal are addressed in a summary order filed
simultaneously with this opinion.4 No

. 16

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Francis, assuming that Mack understood that his arrest was inevitable , hoped that 1

Mack would be amenable to the following proposal: in exchange for $1,000 or 2

$1,500, Mack would tell Francis and Wynter where he would be at a specific time, 3

so that Wynter c ould tell law enforcement where Mack could be found . Francis 4

proposed this arrangement to Mack twice, but Mack neither accepted nor rejected 5

it. Mack never gave Francis or Wynter the reques ted information. 6

On December 21, 2010, at around 8:20 p.m., Keronn Miller, one of Mack’s 7

associates , was riding in a car with Francis. Miller told Francis to pull over so 8

Miller could urinate. Moments later, a masked gunman fired multiple shots from 9

a Ruger 9mm firearm into the car. When Miller returned to the car, he found 10

Francis shot but alive and on the phone with a 911 dispatcher. He then drove 11

Francis to the hospital. Francis died from his injuries on January 15, 2011 . Mack 12

and Miller were ind icted for conspiring to commit witness tampering by 13

murdering Francis . In advance of Miller’s scheduled trial on that indictment , the 14

government disclosed its witness list, which included Jernigan, another of Mack’s 15

close friends. 16

On a superseding indictment , the government offered evidence that while 17

incarcerated at the Wyatt Detention Center in Rhode Island, Mack conspired to 18

kill Jernigan to prevent him from testifying

. T he government relied heavily on 19

testimony from Tyquan Lucien, w ho also was incarcerated at Wyatt and 20

participated in the Jernigan conspiracy

. Lucien told Mack that if Jernigan were 21

arrested, Jernigan might cooperate and testify against Mack. Mack responded

, “ [I] 22

got to do something about it. Like he got to go

. ” 6 Lucien himself decided to do 23

something about it. Because he was not able to get out of jail on bond to kill 24

Jernigan, Lucien turned t o his cellmate, who volunteered that “his boy” could kill 25

Jernigan. 7 Unbeknownst to Lucien, his cellmate was an FBI infor mant

. The 26

6 Gov. App’x at 1281

– 82.

7 Id. at 1304.5 No

. 16

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cellmate arranged for Lucien to me e t “his boy,” who in fact was an undercover 1

agent. When Lucien met with the agent in the Wyatt visiting area , he gave the 2

agent Jernigan’s home address, which he had received from Mack

. Some time 3

later, Lucien told Mack

, “I sent my peoples ” ( referring to the undercover agent )

, 4

“they came Friday,” so that Mack “could know everything’s a go.” 8 During this 5

conversation, Mack confirmed to Lucien that the address that Lucien had given to 6

the agent was the right one. 9 7

On April 27, 2016, the jury convicted Mack on two charges of conspiracy to 8

commit witness tampering by first

- degree murder and on two firearms charges

. 9

On November 1, 2016, the dis trict court sentenced Mack to life imprisonment for 10

each conspiracy and the statutory maximum penalty of ten years ’ imprisonment 11

for each firearm s conviction, all sentences to run concurrently. This appeal 12

followed. 13

DISCUSSION 14

On appeal, Mack attacks his conviction and sentence

, arguing primarily that 15

the district court : (i) failed to instruct the jury on an essential element of his 16

firearm s offenses; ( i i) erred in admitting hearsay declarations under Federal Rule 17

of Evidence 804(b)(3 ); (i i i) e rred in admitting a summary chart under Federal Rule 18

of Evidence 1006 ; and (i v ) was not required to imp ose life sentences for Mack’s 19

conspiracy convictions

. N one of these arguments has merit

. 20

8 Id. at 1318.

9 Id. at 1319.6 No

. 16

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I. T he Jury Instructions 1

At trial, the district court instructed the jury that to satisfy the mens rea 2

element for Mack’s firearms charge s under 18 U.S.C. §§ 922(g)(1) and 924(a)( 2 )

, 10 3

the government had to prove only “that the defendant knowingly possessed the 4

firearm.” 11 The dist rict court did not instruct the jury that the government had to 5

show that Mack knew he was a member of a class of persons forbidden to possess 6

firearms by virtue of his earlier felony conviction. Relying on Rehaif v. United 7

States

, 12 a case decided by the Supreme Court just last term , Mack c hallenges the 8

adequacy of the jury instructions for his firearms conviction

. Because Mack raises 9

his challenge for the first time on appeal, we review for plain error, considering 10

whether “ (1) there is an error; (2) the error is clear or obvious, rather than subject 11

to reasonable dispute; (3) the error affected the appellant ’ s substantial rights; and 12

(4) the error seriously affects the fairness, integrity or public reputation of judicial 13

proceedings.” 13 14

In Rehaif , the Supreme Court addressed whether a non citizen had to know 15

his immigration status to be convicted under 18 U.S.C. § 922(g) (5) , which prohibits 16

“ an alien . . . illegally or unlawfully in the United States” from possessing a firearm. 17

It held that to obtain a ny conviction under § 922(g)

, the government must prove 18

that the defendant “ kn e w he belonged to the relevant category of persons barred 19

from possessing a firearm.” 14 The Court determined that the district court’s jury 20

instructions to the contrary were erroneous and remanded to allow the lower 21

10 18 U.S.C. §§ 922(g) and 924(a)( 2 ) bar various categories of persons, including felons,
fugitives from justice, and individuals dishonorably discharged from the Armed Forces, from
possessing firearms.

11 Gov. App’x at 210 6

.

12 139 S. Ct. 2191 (20 1 9).

13 United States v. Nouri , 711 F.3d 129, 138 (2d Cir. 2013) (internal quotation marks and
alterations omitted) (quoting United States v. Marcus , 560 U.S. 258, 262 (2010)).

14 Rehaif , 139 S. Ct. at 2200.7 No

. 16

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courts to decide whether the error was harmless

. As in Rehaif

, and as the 1

government concede s, the district court’s jury instructions in Mack’s case were 2

clearly erroneous in their omission of the government’s obligation to prove Mack’s 3

knowledge of his status as a former felon

. 4

Examining the question through the plain

- error lens, Mack and the 5

government agree that the first two prongs of plain

- error review are satisfied. 6

They disagree, however, on the effect of th ose erroneous jury instructions

. 7

Accordingly, we focus on the third and fourth prongs of plain

- error review. 8

In assessing the effect of the erroneous jury instructions on Mack’s 9

substantial rights, we consider “ the weight of [ the ] trial evidence bearing on the 10

omitted element” and whether the omitted element was “essentially 11

uncontroverted

. ” 15 We ask whether we can conclude, beyond a reasonable doubt, 12

that a properly

- instructed jury would have returned the same verdict. 16 In 13

answering this question, we appropriately limit ourselves to the evidence actually 14

presented to the jury. 17 15

To find Mack guilty of a violation of § 922(g) (1)

, a properly

- instructed jury 16

would ha ve to find, beyond a reasonable doubt, tha t Mack knew he was a person 17

15 United States v. Gomez , 580 F.3d 94, 100

– 01 (2d Cir. 2009) (quoting United States v. Guevara

, 298 F.3d 124, 126

– 27 (2d Cir. 2002))

.

16 Id. at 101 (“To sustain the conviction, we must find that the jury would have returned the
same verdict beyond a reasonable doubt.”) (citing United States v. Jacks on , 196 F.3d 383, 386 (2d

Cir. 1999)) . Our conclusion would not differ depending on who bears the burden of persuasion
in this appeal. Accordingly, we decline to resolve the parties’ disagreement over whether
“modified plain error” or our standard plain

- error review applies.

17 See Neder v. United States , 527 U.S. 1, 19 (1999) (in assessing “whether the jury verdict would
have been the same absent the error . . . a court, in typical appellate

- court fashion, asks whether

the record contains evidence that could rationally lead to a contrary finding with res pect to the

omitted element”); see also United States v. Sepulveda

, No. 18

- cr

- 363 (RJS), 2019 WL 5704398, at *12

(S.D.N.Y. Nov. 5, 2019) ( declining to “‘engage in pure speculation . . . of w hat a reasonable jury
would have done’ if facts adduced at sentencing had also been introduced at trial” ).8 No

. 16

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convicted of a felony, or “a crime punishable by imprisonment for a term 1

exceeding one year

. ” It is customary for a defendant in a case like Mack’s to 2

stipulate to the existence of his prior felony in order to prevent its details 3

(including the duration of the sentence) from being placed before the jury

. At trial, 4

Mack entered into such a stipulation

, 18 which did not mention the duration of his 5

sentence or his knowledge of whether he ha d a felony conviction , and the 6

government proffered no further evidence on his prior conviction or knowledge

. 7

The government now asks us to rely on Mack’s stipulation , as well as his 8

failure to contest scienter

, to conclude that the jury, if properly ins tructed, would 9

have still found Mack guilty

. We acknowledge that, g iven the rights to appointed 10

counsel

, effective assistance of counsel

, 19 and d ue p rocess
, 20 it is highly improbable 11

that a person could be convicted of a felony without being aware that his possible 12

sentence would exceed one year’s imprisonment

. We also recognize that Mack 13

and his counsel never suggested to the jury that Mack was unaware that his pri or 14

conviction carried a potential sentence of over one year’s imprisonment. This 15

differs Mack’s case from United States v. Balde

, where we found that the defendant 16

might not have known his § 922(g) (5) qualifying status as “ an alien . . . illegally or 17

unlawfully in the United States” based on the legal “complexities” of the 18

defendant’s immigration situation and how “hotly contested” scienter was at the 19

district court. 21 Still, we believe that the substantial

- rights analysis in Mack’s case 20

18 Mack’s stipulation reads, “[P]rior to December 21, 2010, Dominique Mack was convicted of
a crime punishable by imprisonment for a term exceeding o ne year in Connecticut Superior
Court, Judicial District of Hartford.” Appellant’s Amended Supplemental Br. at 2.

19 See United States v. Gordon , 156 F.3d 376, 380 (2d Cir. 1998) (per curiam) (counsel’s failure to

inform his defendant of “the full extent of his sentencing exposure upon conviction” before the

defendant went to trial constituted ineffective assistance of counsel).

20 Caputo v. Henderson , 541 F.2d 979, 983 (2d Cir. 1976) (describing that the constitutional
voluntariness of a guilty plea turns, in part, on whether the trial court informs the defendant of
the maximum sentence possible).

21 943 F.3d 73, 97 ( 2d Cir. 2019).9 No

. 16

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i s a difficult one, given the paucity of factual development at trial pertaining to a 1

question that was not discerned before Rehaif was decided . Accordingly, we 2

d ecline to decide whether a properly

- instructed jury would have found that Mack 3

was aware of his membership in § 922(g) (1)’s class. Instead, we choose to resolve 4

this case on the fourth prong of plain

- error review , which examines whether not 5

reversing would “seriously affect[] the fairness, integrity or public reputation of 6

judicial proceedings” 22 and which does not necessarily confine us to the trial 7

record

. 8

U nder the circumstances, we do not think that rejecting Mack ’s argument 9

will serious ly affect the fairness, integrity, or public reputation of judicial 10

proceedings. To the contrary , we think that accepting it would have that effect. 11

B ecause Mack stipulated to his § 922(g) (1) qualifying status, at trial he likely would 12

have sought to exclude , and would have been successful in excluding, the details 13

pertaining to his prior offense as unne cessary and prejudicial embellishment on 14

his stipulation

. 23 We will not penalize the government for its failure to introduce 15

evidence that it had but that, prior to Rehaif , it would have been precluded from 16

introducing. Therefore, in the limited context o f our fourth

- prong analysis , we 17

will consider reliable evidence in the record on appeal that was not a part of the 18

trial record: Mack’s presentence investigation report (PSR), a report offered to 19

22 Nouri , 711 F.3d at 138 (internal quotation marks and alterations omitted) (quoting Marcus

, 560 U.S. at 262).

23 See Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative value is
substantially outweighed by the danger of . . . unfair prejudice”); see also Old Chief v. United States

, 519 U.S. 172, 192 (1997)

. Most defendants charged with violations of § 922(g)(1) avail themselves

of Old Chief in order to keep the nature and details of their prior felony convictions from the jury

. Thus, in many pre

- Rehaif § 922(g)(1) cases, the trial record will contain limited evidence regarding
the defendant’s knowledge of his felon status. Rehaif now tells us that the defendant’s knowledge
of his felony status is an element of a § 922(g)(1) offense that the government mu st prove. Because
defendants typically avail themselves of Old Chief when they have multiple or damning felony
records, it should come as no surprise that a reviewing court, conducting plain

- error review, will
find that the fairness, integrity, or public reputation of judicial proceedings has not been affected,
when considering evidence of the defendant’s felony status beyond just the trial record.10 No

. 16

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Mack for correction and subsequently adopted and relied upon by the district 1

court during senten cing. The PSR show s that Mack ’s prior conviction , for the 2

unlawful theft and alteration of a firearm, resulted in a total effective sentence of 3

ten years’ imprisonment, with execution suspended after three years , which 4

removes any doubt that Mack was awar e of his membership in § 922(g) (1)’s class

. 5

Similarly , we have no doubt that

, had the Rehaif issue been foreseen by the district 6

court, Mack would have stipulated to knowledge of his felon status to prevent the 7

jury from hearing evidence of his actual sen tence

. Under all of the circumstances, 8

it is plain to us that Mack has not satisfied the fourth plain

- error prong. 9

The refore, the district court’s erroneous jury instructions did not rise to the 10

level of reversible plain error. 24 11

I I

. Admissibility of Farmer’s Testimony under Rule 804(b)(3) 12

Because Miller did not testify a t trial, t he government proffered testimony 13

from Brandyn Farmer as to statements Miller made to Farmer about Francis’ s 14

murder. Mack objected to this testimony , which covered Miller’s statements that 15

Miller had lured Francis to the spot where he was shot, that Miller had been 16

present when the shooting occurred , and that Mack was the shooter

. After 17

carefully hearing from both sides, the district court permitted the testimony for 18

the truth of Miller’s statements under Rule 804(b)(3)’s hearsay exception for 19

statements against penal interest. 20

24 We note that numerous other circuits that have considered the Rehaif issue have likewise

found no reversibl e error in these or similar circumstances. However, the other circuits have so
decided based on the third prong of plain

- error review. See, e.g.

, United States v. Conley

, No. 19

- 5168, 2020 WL 571324 (6th Cir. Feb. 5, 2020) ; United States v. Mancillas , 78 9 F. App’x 549 , 550 (7th Cir.

2020); United States v. Reed , 941 F.3d 1018, 1021

– 22 (11 th Cir. 2019); United States v. Hollingshed , 940

F.3d 410 , 415

– 16 (8th Cir. 2019); United States v. Benamor , 937 F.3d 1182 , 1188

– 89 (9th Cir. 2019).11 No

. 16

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We review the district court’s Rule 804(b)(3) determination for abuse of 1

discretion

, 25 and even i f we find the district court’s determination to be in erro r , 2

we will not reverse if the error i s harmless. 26 But before we can find the district 3

court’s ruling harmless , we must be “able to conclude that the evidence would 4

have been unimportant in relation to everything else the jury considered on the 5

issue in question, as revealed in the record.” 27 6

Rule 804(b)(3) allows for a hearsay statement to be admitted “if the declarant 7

is unavailable as a witness

, ” t he statement is “so contrary to the declarant ’ s 8

proprietary or pecuniary interest or had so great a tendency to invalidate the 9

declarant ’ s claim against someone else or to expose the declarant to civil or 10

criminal liability” that “a reasonable person in the declarant’s position would have 11

made [the statement] only if the person believed it to be true,” and the statement 12

“is suppor ted by corroborating circumstances that clearly indicate its 13

trustworthiness.” 28 On appeal, Mack argues that the district court erred in 14

allowing Farmer’s testimony because (i) Miller was not an “unavailable” witness; 15

(ii) even if Miller w ere “unavailable, ” the government procured his unavailability; 16

and (iii) the statements in question were not against Miller’s interest and were not 17

credible. Although we share Mack ’s concerns regarding a provision in Miller’s 18

plea agreement which Mack argues had the effect of procuring Miller’s 19

unavailability, we conclude that , even assuming there was error, any such error 20

would not have been clear and would in any event have been harmless

. 21

A. Miller was an “unavailable” witness. 22

25 United States v. Williams , 506 F.3d 151, 155 (2d Cir. 2007)

.

26 United States v. Tropeano , 252 F.3d 653, 659 (2d Cir. 2001).

27 United States v. Lombardozzi , 491 F.3d 61, 76 (2d Cir. 2007) (internal quotation mark s omitted).

28 Fed. R. Evid. 804(b)(3).12 No

. 16

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Rule 804(b)(3) first requires that “the declarant whose statement is sought 1

to be introduced be unavailable as a witness

. ” 29 When a witness properly invokes 2

his Fifth Amendment right against self

- incrimination, he is unavailable for the 3

purposes of Rule 804(a). 30 4

At issue in this case is the manner in which Miller’s Fifth Amendment right 5

was invoked. On December 2, 2014 , i n a plea proceeding before the same district 6

court, Miller’s counsel represented that Miller “ would take the Fifth if he was 7

called to testify.” 31 Again , on June 9 , 2015, in a hearing related to Miller’s 8

sentencing, Miller’s counsel stated to the district court that he had advised Miller 9

to take the Fifth and that Miller had “indicated to [counsel] that he would heed 10

that advice.” 32 Ten months later, on April 14, 2016 , the district court conclude d 11

that “Mr. Miller would have exposure were he to answer questions about any 12

involvement he might have, and his lawyers have represented to me in a public 13

proceeding . . . that he would, in fact, invoke the Fifth Amendment if [he] were 14

called. Based on my understanding of the facts, he would have a basis for doing 15

so. And, therefore, I believe he does qualify as unavailable under Rule 804.” 33 16

A ruling regarding privilege “can be made . . . with or with out the witness 17

being haled into court.” 34 In United States v. Williams , we addressed a situation in 18

which the district court relied on representations of counsel regarding their clients’ 19

intention to rely on their Fifth Amendment privileges rather than the clients’ direct 20

29 United States v. Lang , 589 F.2d 92, 95 (2d Cir. 1978).

30 See United States v. Jackson , 335 F.3d 170, 177 (2d Cir. 2003) ; Lang , 589 F.2d at 95.

31 Gov. App’x at 742.

32 Id. at 2293.

33 App’x at 104

– 05.

34 United States v. Williams , 927 F.2d 95, 99 (2d Cir. 1991) (holding that it was “at most harmless
error” for the district court to rely on “the representations of the attorneys for the incarcerated
defendants concerning their clients’ intentions to rely on their Fifth Amendment pri vileges”).13 No

. 16

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representations

. 35 Counsel’s representations were provided to the district court 1

roughly one month before the district court determined that counsel’s clients were 2

unavailable within the meaning of Rule 804(a). 36 T he only difference between 3

Williams and Mack’s case is the amount of time between counsel’s represen tation 4

that the declarant would assert his Fifth Amendment privileges and the district 5

court’s determination of unavailability

. The distinction between one month in 6

Williams and ten months in Mack’s case is not material

. While it is possible that 7

Miller could have changed his mind about testifying , there is no suggestion in the 8

record that he did. T he district court did not abuse its discretion in determining 9

that Miller was unavailable for the purposes of Rule 804(a)

. 10

B. Th e district court did not clearly err in failing to conclude that the 11

government procured Miller’s unavailability. 12

Mack next argues that , even if Miller were unavailable, Miller ’s statements 13

were nonetheless inadmissible under Rule 804(a) because the government 14

impermissibly procured Miller’s unavailability through his plea agreement. 37 15

Mack raises this argument for the first time on appeal, and so we can correct any 16

error only if Mack demonstrates “(1) error that (2) is clear o r obvious under current 17

law; (3) affects his substantial rights, which generally means affects the outcome 18

35 Id.

36 See Brief for the United States at 56, Williams , 927 F.2d 95 (No. 89

- 1504) , 1990 WL 10029894

.

37 See Fed. R. Evid. 804(a) (a witness is not unavailable “if the statement ’ s proponent procured
or wrongfully caused the declarant ’ s unavailability as a witness in order to prevent the declarant
from attending or testifying”).14 No

. 16

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of the district court proceedings; and (4) seriously affects the fairness, integrity, or 1

public reputation of judicial proceedings.” 38 2

Miller’s plea agreement included an unusual provision specifying that the 3

agreed

- upon sentencing range would not be binding if Miller were to testify 4

“ about the subject matter which forms the basis of the superseding indictment in 5

this case, and provide testimony inconsistent with or in addition to the facts proffered 6

and agreed to by the defendant as part of the plea colloquy. ” 39 The plea agreement 7

spec ified facts regarding the Francis shooting, including that Miller enticed Francis 8

to a location where he knew he would be shot, “ knowing and intending that 9

another person or persons who the defendant assisted wanted to prevent a person 10

from communicating w ith federal law enforcement and/or to prevent the 11

attendance of a person at an official federal proceedin g.” 40 12

Importantly, Miller’s plea agreement did not say anything about Mack 13

being the shooter or otherwise identify the shooter. A lthough the statemen t s to 14

Farmer that Miller saw Mack shoot Francis or knew that Mack was the shooter 15

we re not inconsistent with the facts specified in the plea agreement, they included 16

additional facts. Accordingly, Miller could not have presented this testimony 17

without breaching his plea agreement and jeopardizing the agreed

- upon 18

sentencing range , thereby motivating him to invoke his Fifth Amendment rights 19

and rendering him unavailable to testify

. 20

We are deeply troubled by the government’s use of such a provision , which 21

went beyond the typical requirement that Miller’s potential future testimony be 22

truthful and instead significantly constrict ed such testimony by requiring that it 23

be identical to the facts elicited in his proffer. Nevertheless, because the objecti on 24

38 United States v. Le , 902 F.3d 104, 109 (2d Cir. 2018) (citing Marcus , 560 U.S. at 262).

39 App’x at 42 (emphasis added).

40 Id. at 46.15 No

. 16

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was not raised below and our review is limited to plain error

, we need not reach 1

the question of whether the government procured Miller’s availability in this case

. 2

Here, Miller could have faced exposure justifying the invocation of the Fifth 3

Amendment even absent the government’s use of the contested provision ; i n these 4

circumstances, the district court did not commit a clear or obvious error by failing 5

to exclude the evi dence on the basis that the government procured Miller’s 6

unavailability. Moreover, as discussed below, any error with respect to the district 7

court’s Rule 804 analysis would have been harmless. 8

C. Miller’s statements about which Farmer was permitted to te stify were 9

against Miller’s interest and were credible. 10

We are likewise unpersuaded by Mack’s argument that the district court 11

incorrectly found Miller’s statements to be statements against his interest and 12

“ supported by corroborating circumstances that cl early indicate [their] 13

trustworthiness.” 41 T he district judge did not abuse hi s discretion in reaching 14

either of these conclusions. 15

I. Miller’s statements were against his penal interest. 16

Mack first argues that Miller’s statements to Farmer were not against his 17

penal interest because it was in Miller’s interest to falsely implicate Mack. 18

However, “ [w] hether a challenged statement is sufficiently self

- inculpatory can 19

only be answered by vie wing it in context. Thus, this determination must be made 20

on a case

- by

- case basis.” 42 A statement is against penal interest if “a reasonable 21

person in the declarant’s shoes would perceive the statement as detrimental to his 22

or her own penal interest.” 43 “ This exception rests on the notion that ‘reasonable 23

41 Fed. R. Evid. 804(b)( 3).

42 Williams , 506 F.3d at 155 (citation omitted).

43 United States v. Saget , 377 F.3d 223, 231 (2d Cir. 2004 ), supplemented, 108 F. App'x 667 (2d

Cir. 2004).16 No

. 16

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people, even reasonable people who are not especially honest, tend not to make 1

self

- inculpatory statements unless they believe them to be true.’” 44 2

The district court considered each admitted statement individually and 3

provided specific reasons for why each one incriminated Miller. Principally, the 4

district court explained that Miller’s statement that he saw Mack pull the trigger, 5

if “elicited after or together with Miller’s sta tement that he drove Francis to 6

Sigourney Street so that Mack could shoot Francis . . . does inculpate Miller 7

because it tends to show that the conspiracy described in the first statement was 8

actually carried out and that the conspiracy actually caused the death of Ian 9

Francis.” 45 Because statements are self

- inculpatory when they describe acts the 10

declarant and defendant “committed jointly

, ” 46 we agree with the district court. 11

We therefore conclude that t he district court did not abuse its discretion in fin ding 12

the statements to be against Miller’s penal interest

. 13

II. Miller’s statements were supported by corroborating circumstances. 14

Mack next argues that Miller’s statements were not “supported by 15

corroborating circumstances that clearly indicate [their] trustworthiness ,” as 16

required by Rul e 804(b)(3). “We take this [requirement] to mean that the inference 17

of trustworthiness from the proffered ‘corroborating circumstances’ must be 18

str ong, not merely allowable.” 47 19

Her e, Miller’s statements were corroborated by the testimony of Anthony 20

Brinson, Francis’ s nephew, as well as by Miller’s plea agreement and colloquy. 21

Brinson sta ted that Francis told him , after he was shot, that “Miller told Francis to 22

44 Jackson , 33 5 F.3d at 178 (quoting Williamson v. United States , 512 U.S. 594, 599 (1994)).

45 App’x at 99.

46 Saget , 377 F.3d at 231 ; s ee also U nited S tates v. Wexler , 522 F.3d 194, 203 (2d Cir. 2008).

47 United States v. Salvador , 820 F.2d 558, 561 (2d Cir. 1987).17 No

. 16

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pull over on Sigourney Street so that Miller could urinate” and that “Miller got out 1

of the car, walked by a masked man

– and made eye contact with him

– before the 2

masked man began shooting into Francis’s vehicle .” 48 M iller’s statements to 3

Farmer we re also consistent with Miller ’s represent ations in his plea agreement 4

and colloquy. 5

Mack attacks Farmer’s credibility on the basis of his past criminal 6

convictions and as a “jailhouse informant” who only remembered key aspects of 7

his testimony when being prepared for trial. But Farmer’s credibility was for the 8

jury to assess. Such credibility attacks ha ve no bearing on whether Miller’s 9

statements to Farmer were trustworthy, the appropriate Rule 804(b)(3) inquiry

. 49 10

For these reasons , the district court did not abuse its discretion in determining that 11

Miller’s statements were supported by corroborating circumstances that clearly 12

indicate their trustworthiness. 13

D. Any error by the district cou rt in applying Rule 804 would have been 14

harmless

. 15

Even if the district court had erred in its Rule 804 analysis

, we find that such 16

an error would have been harmless

. To find the admission of Miller’s statements 17

harmless, we must be “able to conclude that the evidence would have been 18

unimportant in relation to everything else the jury considered on the issue in 19

question, as revealed in the record.” 50 20

48 Gov. App’x at 2296

– 97.

49 See United States v. Casamento , 887 F.2d 1141, 1170 (2d Cir. 1989) ( stating that “the court
should not look to the credibility of the in

- court witness” in evaluating trustworthiness for Rule
804(b)(3) purposes because “[a]ssessing the credibility of an in

- court witness is the role of the

jury”).

50 Lombardozzi , 491 F.3d at 76 (internal quotation mark s omitted).18 No

. 16

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Like Farmer’s r ecounting of Miller’s statements, c ompelling testimony from 1

Lucien s upport ed the conclusion that Mack participated in the conspiracy to 2

murder Francis

. Lucien testified about time spent with Mack, Jernigan, and 3

another man the day before the Francis shooting. Specifically, he said that Mack 4

was angry with Francis because Francis and Wynter were “trying to turn him in” 51 5

and that Mack said Francis “ got to go

. ” 52 Lu cien testified further that, i n an effort 6

to gain Mack’s respect, Lucien offered to “kill Ian Francis for [Mack] ,” even though 7

Lucien did n o t know who Francis was. 53 Mack “laughed and he said [Jones] going 8

to do it” ; Mack said that Lucien should not be involved because he would be “too 9

hyper” and “might fuck up.” 54 Lucien also testified that Mack instructed Jernigan 10

to get a duffel bag from the closet and that Mack pulled a 9mm Ruger gun out of 11

the duffel bag

. 12

It matters not that Mack told the group that Jones would be the shooter

, 13

whereas Miller said the shooter was Mack. Either way, Mack conspi red to murder 14

Francis. Mack’s conviction for conspiracy to murder Francis wa s well

- supported 15

by Lucien ’s testimony and independent of Miller’s statements

. Thus, even 16

assuming that the district court erroneously admitted Farmer’s testimony 17

regarding Miller’s statements

, the error was harmless

. 18

II I

. Admissibility of Government Exhibit 65 19

Mack challenges the admissibility of government exhibit 65 (“GE 65”)

, a 20

summary chart of phone bills pertaining to phone calls and text messages from 21

December 21, 2010. The chart

, entitled “Mack, Miller, Francis, Jones, and Jernigan 22

Timeline, 21 December 2010

, ” depic ted the fact of certain communications 23

51 Gov. App’x at 1170

– 71, 1172.

52 Id. at 1173.

53 Id. at 1174

– 75.

54 Id. at 1175.19 No

. 16

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between the five me n on the night that Francis was shot. It identifie d each man by 1

his name and picture and indicated whether each communication was a call or 2

text, the time of the communication, and who initiated it

. The summarized phone 3

bills did not identify Mack, Mille r, Francis, Jones, or Jernigan by name or image, 4

but additional evidence in the record linked these men to the phone numbers 5

appearing on the bills. 6

GE 65 was admitted as substantive evidence pursuant to Rule 1006, which 7

allows a party to “use a summary, c hart, or calculation to prove the content of 8

voluminous writings, recordings, or photographs that cannot be conveniently 9

examined in court.” 55 We review the district court’s decision to admit the 10

government’s summary chart for abuse of discretion. 56 11

On appeal, Mack argues that GE 65 was not admissible under Rule 1006 12

because it summarized at most eight pages of recordings

, did not specify the 13

length of each call or the phone numbers of the originating and receiving calls, was 14

“highly selective” in ter ms of which calls it included, and included evidence 15

obtained from FBI experts and not the phone bills. But even eight pages of phone 16

bills can contain hundreds of calls and text messages, and this information would 17

have be en difficult for the jury to syn thesize and evaluate without the aid of a 18

summary

. A summary need not include all the information that appears on a 19

phone bill, such as the duration of each call, if particular kinds of information are 20

not relevant and are either uniformly included or uni formly excluded. A lthough 21

the summary include d some information that was not on the phone bills , such as 22

the name of the man associated with each phone number

, this additional 23

information was already admitted into evidence through other sources

, and 24

defense counsel was fre e to cross

- examine the FBI agent who made the summary 25

chart. 26

55 Fed. R. Evid. 1006.

56 U nited S tates v. Pinto , 850 F.2d 927, 935 (2d Cir. 1988)

.20 No

. 16

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Mack also objects to the pictures of Mack, Miller, Francis, Jones, and 1

Jernigan that were included i n GE 65, arguing that they look ed like “mug shots” 2

and “made their sub jects look like thugs.” Appellant’s Br. at 67. Although at least 3

one of the picture s wa s a booking photo graph , Mack did not alert the district court 4

to any potential prejudic e these p icture s might caus e. T he district court focused 5

only on whether the picture s had been produced to the defense. Based on th is 6

record, we discern no basis to hold that the possible prejudice from the pictures 7

outweighed GE 65’s probative value in clarifying the timeline of calls and texts 8

revealed in the phone bills

. Therefore, in no respect did t he district court abuse its 9

discretion by admitting GE 65

. In any event, had there been error in admitting the 10

chart , it was harmless. GE 65 was admitted to prove the Francis murder 11

c onspiracy

. As discussed, witness testimony sufficiently supported Mack’s 12

conviction of conspiracy to murder Francis

. 13

I V

. Sentencing Issues 14

Mack was convicted of two counts of conspiracy to commit witness 15

tampering by first

- degree murder

, in violation of 18 U.S.C. § 1512(k)

. Section 16

1512(k) provides that those convicted of conspiracy to commit witness tampering 17

“ shall be subject to the same penalties as those prescribed for the offense the 18

commission of which was the object of the conspiracy.” T he district court imposed 19

a life sentence for each conspiracy conviction after concluding that the statutor il y 20

prescribed p enalty for either conspiracy to commit or committing witness 21

tampering by first

- degree murder is death or life impriso nment

. 22

First

, Mack challenges the district court’s statutory analysis, arguing that a 23

life sentence is not available against defendants who conspire to commit but 24

ultimately are not responsible for first

- degree murder

. W e disagree

. Section 25

1512(k) instructs that a conspirator is subject to the same penalty as that prescribed 26

for the substantive offense that was the “object” of the conspiracy. The object of a 27

conspiracy to commit witness tampering by first

- degree murder is

, 28

unsurprisingly, the commission of witness tampering by first

- degree murder. 2921 No

. 16

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Committing witness tampering by killing or attempting to kill an individual is 1

prohibited by 1 8 U.S.C. § 1512 (a)(1) and punishable in accordance with 18 U.S.C. 2

§ 1512( a)(3). Section 1512( a)(3) s pecifies that the p enalty for a “killing” is “the 3

punishment provided in sections 1111 and 1112

. ” In turn, 18 U.S.C. § 1111 4

specifies that the p enalty for first

- degree murder is “death” or “imprisonment for 5

life.” B ecause § 1512(k) adopts the penalty for “the offense the commission of 6

which was the object of the conspiracy

, ” 57 and because the penalty for committing 7

witness tampering by first

- degree murder is death or life imprisonment, the 8

district court did not err in determining that it w as requir ed to sentence Mack to 9

the statutory minimum of life imprisonment. 10

Second, Mack argues that the district court err oneously increased Mack’s 11

sentence “by making its own factual finding that Mack was responsible for a 12

killing.” Appellant’s Br. at 78

. But the district court did not do that . Rather, it was 13

t he jury that determined that Mack had conspired, with respect to both Francis 14

and Jernigan, with the object of commit ting witness tampering by first

- degree 15

murder. 58 T herefore, t his challenge is without merit. 16

Third and f inally, Mack argues that his life sentence violates the Eighth 17

Amendment ’s prohibition against cruel and unusual punishment

. Highlighting 18

cases that overtur ned life sentences imposed on juvenile offenders , Mack subm its 19

that “the constitutional imperative of individualized sentencing should be 20

extended to those who face sentences of life in prison with no possibility of release 21

for the crime of entering into conspiracies that have resulted in no physical harm.” 22

Appellant’s Br. at 7 9

– 80. The cases that Mack cites, however, turn e d on the fact 23

that the defendant was a juvenile. In Graham v. Florida , for example, the Supreme 24

Court held that the Eighth Amendment prohibits certain life sentences for juvenile 25

57 18 U.S.C. § 1512(k) (emphasis added).

58 “The jury was also instructed that to convict on both Count One and Count Four they had
to find that the type of murder that was the object of the conspiracy was first degree murder. No
one objected to these instru ctions.” App’x at 270.22 No

. 16

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offender s because “life without parole sentences for juveniles convicted of 1

nonhomicide crimes [are] as rare as other sentencing practices found to be cruel 2

and unusual” and “developments in psychology and brain science continue to 3

show fundamental differences bet ween juvenile and adult minds

, ” lessening 4

juveniles’ culpability and deservingness of “the most severe punishments.” 59 5

Mack , an adult when he committed his crimes, does not marshal any comparable 6

data or moral reasoning in his Eighth Amendment argument. A lthough l ife 7

imprisonment is inarguably a stiff penalty

, this alone does not offend the Eighth 8

Amendment

. W e agree with the district court that the appropriateness of Mack’s 9

mandatory penalty of death or life imprisonment is a policy question for Congress 10

and not a constitutional question for the court s. 11

CONCLUSION 12

For these reasons, and for those set forth in the accompanying summary o r der, the 13

judgment of conviction and sentence are AFFIRMED. 14

59 560 U.S. 48, 66, 68 (2010), as modified (July 6, 2010) (internal quotation marks omitted).