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

In United States v. Taylor, a jury in theEastern District of Tennessee convicted Defendant Rejon Taylor of carjacking and kidnapping that both resulted in death and of using a firearm tocommit murder while committing the referenced offenses. The jury recommendeda death sentence, which the district court imposed.One of themore interesting issues Taylor raised on appeal was his claim that the districtcourt should have more strenuously questioned a juror who had admittedly hearda newscast replaying certain recorded calls he made from jail, including onecall where he referred to the jurors as racist rednecks. After the Government attempted to introducesuch statements in Taylors sentencing, Taylor moved for a mistrial and askedthe district court to conduct a Remmerhearing and question each juror individual about their exposure to the remark. The district court agreed with Taylorsrequest to interview the jurors, and it subsequently interviewed each jurorprivately without counsel. In conductingthe interviews, the district court asked all but one of the jurors if they hadseen the newscast and whether it would affect their decisions.Based on thejurors responses, Taylor subsequently moved for a mistrial, or, in thealternative, the opportunity to question the jurors. The district court denied both motions.On appeal, theSixth Circuit found that the district court did not abuse its discretion bydeclining to ask one of the jurors explicitly about her exposure to Taylorsracist redneck remark, although it found that an explicit question certainlywould have been preferable. In theCourts opinion, while a failure to conduct a Remmer hearing is flatly unconstitutional, the district courtwill have some leeway in how conducts the hearing. In this case, the Court held the districtcourt did not abuse its discretion because it did not ask certain questions toa particular juror.After theCourt heard oral argument on Taylors 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 challengedthe constitutionality of 18 U.S.C. 924(c)(3)(B) byclaiming its definition of crime of violence was also unconstitutionalunder Johnson. The Court disagreed, finding that thesubsection cited by Taylor was considerably narrower than the ACCA residualclause invalidated by the Supreme Court in Johnson. An important distinction for the Court wasthe fact that while the ACCA residual clause merely required conduct presentingserious potential risk of physical injury to another, 924(c)(3)(B)required that the act by its nature, involve[] a substantial risk thatphysical force against the person or property of any other may be used in thecourse of committing the offense. Further,the Court found that, unlike the ACCA residual clause, 924(c)(3)(B) wasnot linked to a confusing set of examples, such as burglary and arson. Finally, the Court reached its conclusiondespite the fact that both the Seventh and Ninth Circuits previously struck down 18U.S.C. 16(b), which, as the Court conceded, contains language that isidentical to 924(c)(3)(B) in all material respects.Judge White,who issued an opinion concurring in part and dissenting in part, would havereversed Taylors conviction and remanded the case for a Remmer hearing. In JudgeWhites opinion, Taylors comment aboutthe jury had a likelihood of affecting his sentence and required that thedistrict court afford Taylor a meaningful opportunity to prove bias. Additionally, Judge White would have heldthat 924(c)(3)(B) was void for vagueness, vacated Taylors convictions,and remanded the matter for resentencing.

The Courtsdecision in Taylor reflects the continuingimpact of the Johnson decision. In addition, since the Seventh and NinthCircuits reached different conclusions about the same language, albeit in adifferent statute, this matter is perhaps ripe for further review by theSupreme Court.