Court Finds Nothing to Fault in Gang Member's Conviction and Sentence

United States v. Jones, No. 07-2798 (May 20, 2009).
The Third Circuit gives broad rein to a district court’s exercise of discretion across a range of jury selection, evidentiary, and sentencing issues in this appeal from a conviction under the Violent Crimes in Aid of Racketeering (“VICAR”) statute. The defendant was charged with having joined in a retaliatory, drive-by-type shooting on the orders of higher-ranking members of the Double II Bloods gang in East Orange, New Jersey. One person was injured in the shooting but no one was killed. The defendant was sentenced to 22 years’ imprisonment after conviction of, among other offenses, conspiracy to commit murder for the “purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity.” 18 U.S.C. § 1959(a)(5).

At voir dire, following the description to prospective jurors of separate charges brought against certain of Mr. Jones’s six codefendants but not Mr. Jones, all of the codefendants pled guilty. At least one juror, who was dismissed, learned of the codefendants’ pleas via media coverage. By this point, the jury selection process had taken “well over” a month, the court had “pre-qualified approximately 40 jurors out of a pool of approximately 360 based on a detailed questionnaire,” and more than 50 percent of jurors had been excused for cause due to bias against gang members. Following the pleas, the district court instructed jurors to limit their deliberations to the particular crimes charged against the defendant and not to speculate on how he came to be tried alone. The Third Circuit found no abuse of discretion in the district court’s rejection of Mr. Jones’s request to restart the voir dire process with a new jury pool. The court, it found, had made a “substantial effort” to ascertain jurors’ ability to be impartial, “particularly on specific issues,” and had instructed the jury “cautiously.”

The Third Circuit also rejected the defendant’s Rule 401 and 403 challenges to the admission of other gang members’ activities. These spanned a multiple-year period, whereas the charges against the defendant arose from a single incident on one date. Among the evidence admitted was an autopsy photograph of a murdered Double II Bloods member, the “brutal face slashing” of a Double II Bloods member by another member while in jail, and testimony concerning drug-running operations between New Jersey and New York City. The Third Circuit found no abuse of discretion in the district court’s determination that the potential for prejudice did not substantially outweigh this evidence’s probative value on VICAR elements going to the existence of a racketeering enterprise and a connection to interstate commerce. It noted that the government “took steps to pare down” evidence it had planned to introduce against other codefendants, whereby “a trial expected to last up to six months was reduced to five full days of testimony.”

Sentencing-wise, the Court found no procedural error in the district court’s failure to formally rule on the defendant’s motion for a downward departure for overrepresentation of his criminal history. It was sufficient that the government’s sentencing memorandum had acknowledged the “plausibility of a departure” and that the record did not indicate the district court to have thought it lacked discretion to depart. A second contention of procedural error, which the Court called “plausible … but ultimately unconvincing,” was a claim that the district court had given insufficient consideration to the disparity between the defendant’s sentence and that of a codefendant who had participated equally in the shooting incident. Although the codefendant received a sentence of only four years (compared with defendant’s 22), the Circuit held the district court to have given “meaningful consideration” to the disparity factor. The opinion is somewhat ambiguous as to precisely what record the district court made of its reasoning, but for its part, the Circuit notes that the codefendant had pled guilty, accepted responsibility, denounced his gang affiliation despite a “looming threat of violent retaliation,” and substantially cooperated with the government, including by testifying against Mr. Jones. The Third Circuit also found Mr. Jones’s sentence, which reflected a 44-month downward variance, not to be substantively unreasonable.

Mr. Jones fared no better on the one issue reviewed de novo by the Circuit, which was the sufficiency of evidence to support the existence of an agreement to commit murder and thus the conspiracy conviction. An agreement could be inferred from the government’s showing that the defendant, after previously pledging to kill for the gang, had been dispatched from an organizational meeting with a loaded gun and instructions to “kill” or “RIP” (meaning “rest-in-peace”) anyone found at the location of the shooting. The Court also noted that the defendant was “required to follow the orders of senior members,” acted in concert with a second gang member, and was watched over by a third member assigned to make sure the shooting was carried out.

Reversing course, Third Circuit defers decision on whether Section 666 bribery requires proof of a quid-pro-quo

Prompted by a rehearing petition supported by amicus National Association of Criminal Defense Lawyers, the Third Circuit today amended its opinion in United States v. Bornman, No. 07-3447 (3d Cir. Mar. 6, 2009)--blogged here--to delete what had been a brief statement that the federal bribery statute (18 U.S.C. 666) does not require evidence of a quid-pro-quo. The effect of today's amendment, issued in the form of this order, is to defer the thorny question of whether, under Section 666, the government must show that the thing of value was given in exchange for the official act. The Circuits are split on this issue.

Has the Third Circuit Ended Crack Litigation?

The decision in United States v. Doe, http://www.ca3.uscourts.gov/opinarch/083968p.pdf, holds that if the starting point for the sentence is not lowered by the retroactive crack amendment, a defendant is ineligible for relief under 18 U.S.C. section 3582(c)(2). This seems to put an end to litigation on behalf of career offenders who receive departure sentences, or those subject to mandatory minimum sentences who received 5K/3553(e) relief.

The decision is based on what the panel calls the "second element" of section 3582(c)(2), which provides that reductions in sentence should be "consistent with" policy statements of the Sentencing Commission, and the Commission's policy statement in USSG section 1B1.10 that defendants are not entitled to relief unless the amendment has the effect of "lowering the defendant's applicable guideline range." Because its ruling is based on the "second element," the decision does not address Doe's "based on" or rule of lenity arguments.

Judge Fuentes writes a concurring opinion that sounds almost like a dissent, commenting that it is unclear (though not grievously ambiguous, so no rule of lenity relief) that the Commission intended this result and that the Court's interpretation creates some serious inequities among crack defendants.

Doe will seek rehearing en banc. The petition is due on May 14th.