United States v. Jeffery Mack

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15571 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 3, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 6:10-cr-00023-MSS-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFERY MACK,
a.k.a. Jeffery R. Mack,
a.k.a. Jeffery Raymond Mack,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 3, 2011)
Before HULL, MARCUS and FAY, Circuit Judges.
PER CURIAM:
After a jury trial, Jeffery Mack appeals his conviction for possession of a
firearm and ammunition by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) & (e)(1). After review, we affirm.
On appeal, Mack argues that the district court erred by not striking the
testimony of Virgie May Counts or declaring a mistrial because the government
failed to timely disclose Counts’s prior statement to law enforcement as required
by the Jencks Act.1
The Jencks Act provides in pertinent part:
After a witness called by the United States has testified on direct
examination, the court shall, on motion of the defendant, order the
United States to produce any statement [] of the witness in the
possession of the United States which relates to the subject matter as to
which the witness has testified. . . .
18 U.S.C. § 3500(b). If the government does not comply, “the court shall strike
from the record the testimony of the witness, and the trial shall proceed unless the
court in its discretion shall determine that the interests of justice require that a
mistrial be declared.” Id. § 3500(d).
1
We generally review a district court’s enforcement of Jencks Act disclosure requirements
for abuse of discretion. United States v. Schier, 438 F.3d 1104, 1107 (11th Cir. 2006). However,
when, as here, the defendant did not object under the Jencks Act in district court, our review is
for plain error. Id. To establish plain error, the defendant must show “(1) error, (2) that is plain,
and (3) that affects substantial rights. If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation marks omitted).
2
The general rule for Jencks Act material is that a defendant is required to
request disclosure following a witness’s direct testimony. Schier, 438 F.3d at
1112. “Thus, it is only upon the defendant’s request that a district court exercises
its discretion as to the production of Jencks materials.” Id. If a defendant fails to
make such a request, then there is no error, plain or otherwise, under the Jencks
Act. See id.A district court does not abuse its discretion in failing to strike testimony or
grant a new trial based on an alleged Jencks Act violation if the record does not
establish that federal authorities possessed the statement in question. See United
States v. Naranjo, 634 F.3d 1198, 1211 (11th Cir. 2011). “A statement is in the
possession of the United States for Jencks Act purposes if it is in the possession of
a federal prosecutorial agency.” Id. (quotation marks omitted). A report is not in
possession of the United States if it was obtained by state authorities during their
own investigation but never sent to federal authorities. See id. at 1212.
Here, the district court committed no error, plain or otherwise. First, Mack
did not request Jencks material after Counts testified. Rather, it was the district
court that inquired as to whether the government had turned over the statement
Counts described during her testimony. Second, the record shows that the
government never had possession of a written statement by Counts. To the extent
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Counts’s written statement existed, it was made to state law enforcement and was
not sent to federal prosecutors.2 Given that Mack did not request Jencks Act
material or show that the government possessed such material, the district court
did not err by failing to strike Counts’s testimony or grant a mistrial.
Additionally, Mack argues that 18 U.S.C. § 922(g) is unconstitutional on its
face and as applied to him because: (1) Congress acted outside its Commerce
Clause power by regulating non-economic criminal activity that does not
substantially affect interstate commerce; and (2) there was no evidence the firearm
he possessed traveled in interstate commerce.3
This Court previously has rejected the constitutional challenges to 18 U.S.C.
§ 922(g) that Mack asserts. In United States v. Wright, 607 F.3d 708 (11th Cir.
2010), this Court concluded that: (1) the phrase “in or affecting commerce” in
§ 922(g) indicates a congressional intent to assert its full Commerce Clause
power; (2) to show that a firearm substantially affected interstate commerce, the
2
After consulting with Counts and Orange County Sheriff’s Office Deputy Andrew
Williams, the government advised that when Counts testified that she gave a statement to state
law enforcement officers, Counts meant that she had filled out her name and contact information
in case she needed to testify in the future, but that she did not fill out, or have filled out for her, a
long dissertation of the facts she witnessed. Further, the government stated that it had looked
through the entire case file and confirmed it had no written statement by Counts.
3
Because Mack raises his Commerce Clause challenges for the first time on appeal, we
review only for plain error. United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010).
4
government need only prove some minimal nexus to interstate commerce, which it
may accomplish by demonstrating that the firearm possessed traveled in interstate
commerce; and (3) § 922(g) is not unconstitutional as applied to a defendant if the
government shows that the firearm involved was manufactured outside the state in
which the offense took place. Id. at 715-16.
Mack and the government stipulated that the firearm and ammunition he
possessed crossed the state line prior to their recovery in Florida. Thus, the
government showed the required interstate commerce nexus. Accordingly,
§ 922(g) is constitutional on its face and as applied to Mack.
AFFIRMED.
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