United States of America v. Daniel Louis Jackson

In October 2017, a jury found Daniel Louis Jackson guilty of all counts of a

four-count Superseding Indictment for his role in a bank robbery in Hopkinton, Iowa:

(1) Armed Bank Robbery and Aiding and Abetting Armed Bank Robbery; (2) Aiding

and Abetting the Use, Carrying, and Brandishing of a Firearm During a Crime of

Violence; (3) Conspiracy to Commit Armed Bank Robbery; and (4) Conspiracy to

Use, Carry, and Brandish a Firearm During a Crime of Violence. Jackson appeals,

challenging (1) the admission of three Facebook videos into evidence and (2) the

district court’s instruction on the elements 1 of aiding and abetting the use, carrying,

or brandishing of a firearm during a crime of violence. We affirm.

I. Background

On October 17, 2016, Daniel Jackson and his co-defendant Jason Centeno

traveled from Muscatine, Iowa, to the Citizens State Bank of Hopkinton, Iowa. While

Jackson waited in the car, Centeno entered the bank and took video of its interior.

Three days later, Jackson (in the company of Centeno and their roommate Edgar

Pauley) went to the Muscatine Wal-Mart and purchased black pantyhose, ski hats,

and zip ties.

On the morning of October 21, 2016, Jackson and Centeno donned the

disguises they purchased at Wal-Mart and entered the bank. Once inside, the two

men leapt over the counter, whereupon Jackson displayed a knife, used a zip tie to

secure a teller’s hands behind her back, and took money from her drawer.

Meanwhile, Centeno brandished a .38 special revolver and demanded that a second

teller give him the money from her drawer. Having accomplished his task with the

first teller, Jackson approached the second teller and ordered her to the ground.

While this was going on, the bank’s manager entered the bank, having just reparked

his car to find the robbery in progress. Jackson accosted him, ordered him to

the ground, and secured his hands with a zip tie, inadvertently dropping a zip tie on

the floor. Jackson’s DNA was later found on both zip ties.

1 The Honorable Leonard T. Strand, Chief Judge, United States District Court

for the Northern District of Iowa.

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Jackson and Centeno made their getaway with approximately $8,225 of

purloined cash in their possession. The pair then fled the state with Pauley, leaving

the .38 revolver with Centeno’s mother in New York and eventually making their way

to Daytona Beach, Florida, where they were arrested.

Prior to trial, defense counsel moved to exclude three videos that Jackson

messaged to his Facebook friends in the days leading up to the robbery. The first

video, sent to “EBK Rich,” showed Jackson driving through a residential area and

twice telling Centeno to fire the revolver toward the houses. Centeno complied.

EBK Rich and Jackson also had a conversation through Facebook Messenger.

Jackson said that he was “bout to do some real shit.” EBK Rich then asked Jackson,

“What you about to do?” Jackson responded with two words: “Bank” and “Robbing.”

The second video showed Centeno firing two rounds from the revolver into an

abandoned building while wearing the same jacket he wore during the robbery.

Centeno then passed the gun to Jackson, who also fired two rounds.

The third video showed Jackson displaying twenty rounds of ammunition and

stating, “Get what you want. I went to the store and got bullets with no, no ID.” He

picked up a black .38 special revolver and said, “I got this pretty baby.” He then

pointed the gun at the camera and dry fired it.

The district court denied Jackson’s motion in limine, ruling that the videos

were intrinsic evidence that “tend[ed] to logically prove the elements of the crimes

at issue.” In the alternative, the court found that if the evidence was extrinsic to the

charged crimes, it would be admissible under the exceptions of Federal Rule of

Evidence 404(b).

On October 2, 2016, the government and defense submitted joint proposed jury

instructions. “Jointly Proposed Instruction No. 7” dealt with the elements of the

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principal offense of using, carrying, or brandishing of a firearm during a crime of

violence. “Jointly Proposed Instruction No. 8” included the elements of aiding and

abetting. The district court issued draft versions of Instructions 7 and 8 that were

identical substantively to the proposed instructions. The court instructed the parties

to raise any objections to the draft instructions. Neither party objected to the

instructions set forth in 7 and 8. The court filed its final jury instructions. In the final

pretrial conference, the issue of instructions was raised again:

THE COURT: The jury instructions, on the docket at 123-1, is the set

that I intend to read to the jury today, minus the verdict form. . . . But as

far as the instructions that would be read today, again, they’re at Number

123-1, does any party have any record to make? Ms. Williams?

MS. WILLIAMS [the AUSA]: No, Your Honor.

THE COURT: Ms. Johnston?

MS. JOHNSTON [defense counsel]: No, Your Honor.

Jackson proceeded to trial on October 10, 2017. On the third day of trial, the

jury returned a verdict of guilty against Jackson on all four counts. The district court

sentenced Jackson to a total of 180 months’ imprisonment to be followed by three

years of supervised release. Jackson timely appealed.

II. Discussion

A. Admission of Facebook Videos

Jackson argues that the district court abused its discretion when it admitted the

three Facebook videos into evidence as either intrinsic evidence or extrinsic evidence

under one of the exceptions to Rule 404(b). See United States v. Engler, 521 F.3d

965, 972 (8th Cir. 2008) (citing United States v. McCracken, 110 F.3d 535, 542 (8th

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Cir. 1997)) (standard of review). Jackson also asserts that the evidence is

inadmissible under Federal Rule of Evidence 403 because the probative value of the

videos was substantially outweighed by their prejudicial effect.

We agree with the district court that the videos constitute intrinsic evidence.

“[W]here evidence of other crimes is ‘so blended or connected . . . or tends logically

to prove any element of the crime charged,’ it is admissible as an integral part of the

immediate context of the crime charged. . . . [I]t is not extrinsic and therefore not

governed by Rule 404(b).” United States v. Phelps, 168 F.3d 1048, 1057–58 (8th Cir.

1999) (first alteration in original) (quoting United States v. Swinton, 75 F.3d 374, 378

(8th Cir. 1996)). The video evidence was highly probative as evidence tending

logically to prove the elements of the offenses. The videos linked Jackson to the

acquisition of the firearm and ammunition days before the robbery, showed Jackson’s

knowledge of Centeno’s use and possession of the firearm in the days leading up to

the robbery, and—when coupled with the messages exchanged with EBK

Rich—connected the firearm with plans to commit a bank robbery.

Jackson’s claim that the evidence is excludable as unfairly prejudicial under

Rule 403 relies primarily on the First Circuit’s decision in United States v. Rose, 104

F.3d 1408 (1st Cir. 1997). Rose is unpersuasive and distinguishable from the facts

in this case. The videos showing Centeno and Jackson shooting at an abandoned

industrial building and Jackson dry firing the gun at the camera were far less likely

to create unfair prejudice than the photo in Rose that showed the defendant pointing

a potentially loaded firearm at a friend’s head. See United States v. Brooks, 715 F.3d

1069, 1077 (8th Cir. 2013) (distinguishing Rose). Although the video showing

Centeno following Jackson’s instructions to fire the gun toward houses in a

residential area is arguably more prejudicial, its probative value is greater as it shows

a personal and controlling relationship between the co-defendants and sheds light on

Jackson’s interactions with Centeno. Under these circumstances, we cannot say that

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the district court abused its discretion in admitting the videos based on a finding of

high probative value in comparison to the potential prejudice.

B. Aiding and Abetting Jury Instruction

Jackson next argues that the jury instruction on aiding and abetting the use,

carrying, or brandishing of a firearm during a crime of violence was erroneous

because it did not require the jury to find that he knew in advance that Centeno would

brandish a firearm during the bank robbery. To achieve a conviction for aiding and

abetting an offense under 18 U.S.C. § 924(c), the government must prove:

(1) that a predicate crime of violence or drug trafficking was committed;

(2) that a gun was used in a prohibited manner during the predicate

offense; (3) that the defendant facilitated the firearm use, the predicate

crime, or both; and (4) that the defendant had advance knowledge that

one of his confederates would use or carry a gun during and in relation

to the commission of the predicate crime, or would possess a gun in

furtherance of the predicate offense.

United States v. McArthur, 850 F.3d 925, 941 (8th Cir. 2017) (citing Rosemond v.

United States, 134 S. Ct. 1240, 1245, 1247, 1248–51 (2014)). Jury Instruction No.

8, on the other hand, only required that Jackson (1) “knew that the crime charged was

being committed or was going to be committed,” (2) “had enough advance knowledge

of the extent and character of the crime that he was able to make the relevant choice

to walk away from the crime before all of the elements were complete,” and (3)

“knowingly acted in some way for the purpose of causing, encouraging or aiding the

commission of the crime charged.” Jackson argues that the vague references to “the

crime” allowed the jury to convict him if it found that he merely had advance

knowledge of the robbery and not necessarily of the use, carrying, or brandishing of

the firearm.

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Generally, we review an unobjected-to instruction for plain error. United

States v. Tobacco, 428 F.3d 1148, 1150 (8th Cir. 2005). Waived claims, however,

are unreviewable on appeal. United States v. Wisecarver, 598 F.3d 982, 988 (8th Cir.

2010) (citing United States v. Booker, 576 F.3d 506, 511 (8th Cir. 2009)). It is wellestablished

in this circuit that “when a defendant specifically requests a particular

instruction, he gives up the right to appeal any error in that instruction.” United

States v. Mariano, 729 F.3d 874, 881 (8th Cir. 2013). Jackson “cannot challenge on

appeal the court’s giving of the precise instruction that he requested” and never

objected to. Id. at 882. See also United States v. Tillman, 765 F.3d 831, 836 (8th Cir.

2014) (citing Wisecarver, 598 F.3d at 988) (“Because Tillman jointly proposed the

disputed instruction and never objected, she waived the right to contest it.”).

Jackson’s challenge is unreviewable on appeal.

For the foregoing reasons, we affirm the judgment of the district court.