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United States v. Rembert

United States Court of Appeals, Eighth Circuit

March 23, 2017

United States of America Plaintiff- Appellee
Marchello Rembert Defendant-Appellant

          Submitted: January 13, 2017

         Appeal from United States District Court for the Northern District of Iowa, Waterloo

          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 the admission of a Facebook video at trial, as well as the district court's[1]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 to 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 firearm 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 pretrial 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 caption 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 posted 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.


         A. Admission of Facebook Video

         A district court's ruling under Federal Rule of Evidence 404(b) is reviewed for an abuse of discretion. United States v. Turner, 583 F.3d 1062, 1065 (8th Cir. 2009). A district court's admission of prior act evidence will be reversed "only when such evidence 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." United States v. Benitez, 531 F.3d 711, 716 (8th Cir. 2008). 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 ...

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