NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 21-3122 ____________

UNITED STATES OF AMERICA, Appellant

v.

CAROLYN JACKSON ____________

No. 21-3123 ____________

UNITED STATES OF AMERICA, Appellant

v.

JOHN E. JACKSON ____________

On Appeal from the United States District Court for the District of New Jersey (D.C. Nos. 2:13-cr-00290-001 & 2:13-cr-00290-001) District Court Judge: Honorable Katharine S. Hayden ____________

Argued December 13, 2022 ____________

BEFORE: RESTREPO, McKEE, and SMITH, Circuit Judges

(Filed: April 3, 2023) ____________

OPINION* ____________

Mark E. Coyne John F. Romano [ARGUED] Office of United States Attorney 970 Broad Street, Room 700 Newark, NJ 07102 Counsel for Appellant

Rubin M. Sinins Herbert I. Waldman [ARGUED] Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins 505 Morris Avenue Springfield, NJ 07081 Counsel for Carolyn Jackson

David A. Holman Carol Dominguez Louise Arkel [ARGUED] Office of Federal Public Defender 1002 Broad Street Newark, NJ 07102 Counsel for John E. Jackson

RESTREPO, Circuit Judge

In 2015, a jury convicted John and Carolyn Jackson of multiple counts of

endangering the welfare of their three foster children. The judge who presided over the

trial sentenced the Jacksons for these convictions three times. The government appealed

each sentence imposed. In vacating the prior two sentences, this Court remanded with

instructions to sentence the Jacksons consistent with the jury’s verdicts and federal

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. 2 sentencing law. We regrettably conclude the sentencing judge has declined to follow our

mandate for the third time, requiring us to again vacate the Jacksons’ sentences. We find

it appropriate to remand with the instruction that the case be reassigned to a different judge

for resentencing.

I.

We write only for the parties and therefore do not address the facts at length. In

sum, Carolyn and John Jackson inflicted devastating abuse on their three young foster

children—Joshua, J, and C—over the course of five years, causing serious and lasting

harm. Pursuant to the Assimilated Crimes Act (“ACA”), the Jacksons were tried under

New Jersey’s endangering the welfare of children statute, N.J. Stat. Ann. § 2C:24-4a,

because the abuse occurred on a federal military installation. Carolyn and John were

charged in a fifteen-count superseding indictment. The charges consisted of a New Jersey

conspiracy charge (Count 1), New Jersey substantive child abuse charges (Counts 2-12,

15), and federal assault charges (Counts 13-14). The District Court granted judgments of

acquittal for the two federal assault charges at the close of the government’s case. After a

thirty-nine-day trial, the jury found Carolyn guilty of twelve counts (Counts 1-12), and

John guilty of ten counts (Counts 1, 3-9, and 11-12).

Under Count 1, Carolyn and John were found to have conspired from August 2005

to April 2010 to engage in acts that endangered their three foster children. Under Count 7,

they were convicted of withholding sufficient nourishment and food from C. Under Counts

3, 6, and 12, they were found guilty of physically assaulting all three children with various

3 objects and their hands. Under Counts 4 and 8, they were convicted of withholding

adequate water from J and C and prohibiting these children from drinking water. Under

Counts 5 and 9, the Jacksons were found guilty of forcing J “to ingest hot sauce, red pepper

flakes and raw onion,” and forcing C “to ingest hot sauce and red pepper flakes.” A42,

A46. Under Count 11, they were found to have withheld prompt and proper medical care

for C’s dehydration and elevated sodium levels.

In addition, Carolyn was also found guilty of Count 2, withholding sufficient

nourishment and food from Joshua, and Count 10, “causing [C] to ingest excessive sodium

and a sodium-laden substance while restricting [C’s] fluid intake, causing [C] to suffer

hypernatremia and dehydration, a life threatening condition.” A47.

Prior to the first sentencing hearing in December 2015, the Probation Office

calculated the United States Sentencing Commission Guidelines (“Guidelines”) range as

210 to 262 months for both Defendants, and the government sought sentences of 235

months’ imprisonment for Carolyn and 188 months’ imprisonment for John.1 The District

Court imposed a sentence of 24 months’ imprisonment for Carolyn, and 3 years’ probation,

400 hours of community service, and a $15,000 fine for John. In vacating the first sentence,

this Court held that assault is a sufficiently analogous federal offense for the purposes of

sentencing under the ACA, and the District Court therefore committed procedural error by

1 In their sentencing memorandum, both Defendants argued they should be sentenced in accordance with

because there was no analogous federal crime to allow use of the Guidelines.

4 not applying the assault Guideline to the Jacksons’ convictions when calculating their

sentences.2 United States v. Jackson,

(3d Cir. 2017) (“Jackson I”).

Jackson I also held that the District Court erred by refusing to apply the preponderance of

the evidence standard at sentencing.

.

At the second sentencing hearing in April 2018, the government argued that the

aggravated assault Guideline and other sentencing enhancements applied to multiple

counts of conviction, resulting in a range of 210 to 262 months’ imprisonment for Carolyn

and 188 to 235 months’ imprisonment for John.3 The District Court applied the assault

Guideline but ruled that only one of the children’s injuries justified a sentence in the

aggravated assault Guideline range. The Court ruled that the preponderance of the

evidence proved that Carolyn was responsible for C’s second bout of hypernatremia. The

District Court calculated a Guidelines range of 46 to 57 months for Carolyn and 18 to 24

months for John but then varied significantly downward from those ranges, sentencing

2 See United States Sentencing Commission, Guidelines Manual, §2A2.3 (assault), §2A2.2 (aggravated assault) (Aug. 2021). 3 At oral argument, the government explained that the District Court ordered the Probation Office not to calculate Guidelines ranges for either defendant after the first sentencing hearing. The District Court struck the factual summary—which was provided by the government as a matter of course—from the Pre-Sentence Report and “asked probation not to do any analysis.” Oral Argument at 13:03-04, United States v. Carolyn and John E. Jackson (Dec. 15, 2022) (No. 21-3122/23). For the two subsequent sentencings, only the government and defense counsel provided Guidelines calculations.

In his memorandum for the second sentencing, John suggested the proper Guidelines range for him was 8 to 14 months’ imprisonment but that a sentence similar to the one he initially received was appropriate. Carolyn’s memorandum claimed her Guidelines range was 6 to 12 months’ imprisonment but that she should be sentenced to time-served. 5 Carolyn to 40 months’ imprisonment and John to 3 years’ probation plus 400 hours of

community service. The government again appealed.

On appeal for the second time, this Court noted the jury’s finding that the Jacksons’

foster children suffered “at least ten unusual and serious injuries while in [their] custody.”

United States v. Jackson,

, 100 (3d Cir. 2020) (“Jackson II”). These

injuries included, for example, “a fractured bile duct, a brain injury, a fractured skull, a

fractured humerus, a fractured spine, and a gangrenous finger” for victim Joshua, and for

victim C, “a fractured humerus and two bouts of acute hypernatremia.”

(internal

citations omitted). In Jackson II, we held that the District Court “turned the preponderance

of the evidence standard on its head” by viewing the injuries in isolation and crediting the

Jacksons’ experts over the evidence sustaining the verdicts.

This Court mandated that

the District Court examine the children’s injuries “together with the jury findings that the

Jacksons were both guilty, beyond a reasonable doubt” of the conduct underlying the

multiple counts, which included “repeatedly assault[ing] all three children in a variety of

ways” as well as depriving them of food, water, and medical treatment.

Jackson II

concluded that the government “adequately proved” the Jacksons caused “several of the

children’s serious injuries,” which meant that the District Court erred in applying the

aggravated assault Guideline to only one count of conviction.

. See USSG

§2A2.2.4 Further, Jackson II concluded that the District Court erred in finding that the

4 Jackson II explained that the assault Guideline includes a cross-reference to the aggravated assault Guideline. “Aggravated assault is defined . . . as any ‘felonious assault that involved . . . serious bodily injury.’” 819 F. App’x at 99–100 (quoting USSG. §2A2.2 6 preponderance of the evidence did not support imposing an enhancement for the

obstruction of justice for both Jacksons, given that the jury found them guilty of conduct

they denied committing under oath. Id. at 102.

For the third sentencing in October 2021, the government calculated a Guidelines

range for both Defendants of 108 to 135 months’ imprisonment. The Jacksons calculated

their Guidelines range as 57 to 71 months’ imprisonment. The District Court imposed a

sentence of 40 months’ imprisonment (which it deemed time-served) plus a one-year term

of supervised release for Carolyn, and an 18-month term of home confinement for John.

In imposing this sentence, the District Court found the Jacksons responsible for two of the

children’s serious bodily injuries—one of C’s bouts of hypernatremia and Joshua’s

gangrenous finger—and calculated a Guidelines range for both Defendants of 70 to 87

months. After applying the

(a) sentencing factors, the Court granted

“substantial” downward variances. A9066.

The government appealed for the third time, claiming that the District Court failed

to follow our mandate and committed reversible error. The government argues that the

District Court failed to follow this Court’s instruction to evaluate the children’s injuries

holistically in light of the guilty verdicts, deciding instead to “simply add[] one additional

injury” to its aggravated assault Guideline calculation. Gov’t Reply Br., 5. Arguing that

n.1). The Guidelines define serious bodily injury “as an ‘injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.’”

(quoting USSG §1B1.1 n.1). 7 two serious injuries are less than “several,” the government claims that the District Court

again refused to make the requisite findings of fact under the preponderance standard as

instructed by this Court in Jackson II. The government contends that this refusal to follow

our mandate constituted reversible procedural error. We agree and therefore vacate the

Jacksons’ sentences.

II. 5

It is a well-established principle of law that a district court must follow an appellate

court’s mandate. Briggs v. Pennsylvania R. Co.,

(1948) (citing Ex parte

Sibbald v. United States,

,

(1838). In so doing, “[a] trial court

must implement both the letter and spirit of the mandate, taking into account the appellate

court’s opinion and the circumstances it embraces.” Bankers Trust Co. v. Bethlehem Steel

Corp.,

(3d Cir. 1985). Adherence to a mandate is required “by the lower

federal courts no matter how misguided the judges of those courts may think it to be.”

Hutto v. Davis,

(1982). Following a remand for a resentencing, a district

court’s failure to abide by the scope and substance of this Court’s mandate constitutes

reversible error. United States v. Kennedy,

, 253–54 (3d Cir. 2012). We

review the District Court’s adherence to the mandates in both Jackson I and Jackson II de

novo.

.

5 The District Court had subject matter jurisdiction under

, and we have jurisdiction under

(b). The court’s findings of fact are reviewed for plain error. United States v. Brown,

(3d Cir. 2010).

8 a. Refusal to Abide by Jackson II’s Mandate

In Jackson II, we remanded to the District Court with three specific instructions.

Jackson II, 819 F. App’x at 101. First, we instructed the District Court to determine which

was more likely: that the Jacksons caused the children’s injuries, or that some other cause

was responsible despite the jury’s findings of physical assault, the withholding of food,

water, and medical treatment, and the force-feeding of hot sauce and red pepper flakes. Id.

at 100. We further instructed the District Court to credit the jury’s findings that the

Jacksons caused “several” of the “at least ten unusual and serious injuries” the children

suffered while in the Jacksons’ care. Id. at 100–01. After identifying those injuries, the

District Court was directed to calculate commensurate aggravated assault Guideline

sentences. Id. at 101. Finally, we instructed the District Court to apply the obstruction of

justice enhancement. Id. at 101-02.

The District Court abided by the second and third components of our mandate. The

District Court applied the aggravated assault Guideline to two groups of counts, which is

facially consistent with our instruction to apply the aggravated assault Guideline to

“several” groups of counts at the third sentencing. And the District Court applied the

obstruction of justice enhancement.

Yet contrary to our directive to assess causation holistically, the District Court failed

to do so. In Jackson II, we instructed the District Court to ask whether, for each grouping

of counts, it is more likely than not that the Jacksons caused some severe bodily injury—

which can be true even if each discrete injury more easily can be attributed to chance.

9 Despite stating at the outset of her oral opinion that she intended to apply this principle,

the District Court nevertheless considered each injury in isolation. For example, rather

than asking whether it was more likely than not that the Jacksons’ repeated assaults caused

at least one of Joshua’s severe injuries (to his finger, bile duct, humerus, and skull), the

District Court asked whether each discrete injury was likely caused by the Jacksons’

physical assaults. With respect to C and J, the District Court repeated nearly the same

analysis from prior sentencing hearings and found once more that the government had not

“proved” that the Jacksons caused each individual injury. See A9039–40 (listing individual

injuries). Such analysis directly contradicts our instruction to consider whether “not just

one, but both, of C’s bouts of hypernatremia were more likely to have been caused by the

Jacksons’ withholding of adequate water (for which they were convicted),” rather than

“some other hypothetical, unproven occurrence cited by the Defendants’ experts.” Jackson

II,

App’x at 100–01.

In her analysis, the District Court did not discuss what inferences can be drawn from

viewing each individual injury in context of all the injuries, their eerie similarities, and the

nature of the Jacksons’ convictions. She merely marched through each injury, explaining,

as she had before, why she credited the Jacksons’ witnesses and discredited the

government’s witnesses. In ignoring this court’s mandate, the District Court committed

reversible error.

10 b. Reassignment to Different Judge

In addition to asking this Court to vacate the Jacksons’ third sentence, the

government requests this case be reassigned to a different judge for re-sentencing. This

Court can exercise its supervisory power to reassign a case on remand if we deem such an

action necessary. Gov’t of the Virgin Islands v. Walker,

(3d Cir. 2001).

We recognize that reassignment is an exceptional remedy. United States v. Kennedy,

(3d Cir. 2012). The remedy is warranted where the appellate court deems it

necessary to “preserve not only the reality but also the appearance of the proper functioning

of the judiciary as a neutral, impartial administrator of justice.” Alexander v. Primerica

Holdings, Inc.,

(3d Cir. 1993) (quoting Haines v. Liggett Group Inc.,

(3d Cir. 1992)) (internal quotation marks omitted). We believe such a necessity

exists here because it appears the District Court judge will have “substantial difficulty in

putting out of her mind her previously expressed views” of the evidence and the

Defendants. United States v. Ming He,

(2d Cir. 1996).

During the second resentencing hearing, the District Court demonstrated a hesitance

to follow our instruction to view the children’s injuries holistically and in the context of

the jury’s findings of guilt. Instead, the District Court based its sentencing decisions on its

own theory that the Jacksons made misguided parenting choices. See Jackson II, 819 F.

App’x at 101 n.8. It reasoned that “this is a family case” where “[e]verything turns

inward,” making it impossible for anyone—including the members of the jury

presumably—to know whether the children’s serious injuries were caused by the Jacksons’

11 criminal conduct. A9070–71. After positing that the verdicts were essentially unsupported

by the record, the District Court questioned whether punishment was necessary under the

circumstances. We conclude this reading of the record is contrary to our instruction to

implement the jury’s findings that the Jacksons inflicted cruel and devastating abuse on

three young children over the course of five years.

Disregarding this Court’s enunciation of the law and clear instruction, the District

Court asserted that determining the extent of the harm under the preponderance standard

raised a “lurking Constitutional issue.” A9021. This adherence to an incorrect

interpretation of the law resulted in reversible procedural errors for the third time.

Finally, we note that our decision to remand to a different judge for resentencing

should not come as a surprise to the District Court. In stating that she abided by her own

conscience and her belief as to the law, the District Court judge recognized that, if the

Jacksons’ sentences were again vacated, the case would not return to her for re-sentencing.

III.

For the foregoing reasons, we will vacate the sentence imposed by the District Court

and remand for resentencing. In so doing we will direct the Chief Judge of the United

States District Court for the District of New Jersey to assign this case and all related matters

to a different district court judge.

12