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Showing posts from May, 2009

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 codefend…

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,, 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 &quo…