United States v. Jones

Opinions of the United

2009 Decisions States Court of Appeals

for the Third Circuit

5-20-2009

USA v. Jones

Precedential or Non-Precedential: Precedential

Docket No. 07-2798

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-2798

UNITED STATES OF AMERICA

v.

PRESTON JONES

a/k/a

Death

Preston Jones,

Appellant

Appeal from the United States District Court

for the District of New Jersey

(D.C. Criminal Action No. 2-03-cr-00844-023)

District Judge: Honorable Katharine S. Hayden

Submitted Under Third Circuit LAR 34.1(a)

January 27, 2009

Before: SCIRICA, Chief Judge, AMBRO,

and SMITH, Circuit Judges

(Opinion filed: May 20, 2009)

Michael A. Baldassare, Esq.

Gibbons

One Gateway Center

Newark, NJ 07102-5310

Counsel for Appellant

George S. Leone, Esq.

Sabrina G. Comizzoli, Esq.

Office of United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102

Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge

This appeal concerns Preston Jones’s jury trial and

conviction under the Violent Crimes in Aid of Racketeering Act

(“VICAR”), 18 U.S.C. § 1959, and his sentence of 22 years’

imprisonment. His conviction stems from his involvement with

the Double II Bloods, an East Orange, New Jersey sect of a

violent nationwide street gang known as the Bloods. In 2004,

2

after a two-year investigation, the Federal Bureau of

Investigation arrested and charged over 40 Double II Bloods

gang members and associates with various racketeering, drug,

firearm, and violent-crime offenses. All of the gang members,

except Jones, pled guilty and avoided trial.

Jones raises five challenges to his conviction and

sentence on appeal: (1) the District Court abused its discretion

in failing to restart jury selection after six co-defendants pled

guilty during voir dire; (2) a rational jury could not have found

beyond a reasonable doubt that an agreement to commit murder

was the object of the charged conspiracy; (3) the Court

improperly admitted unduly prejudicial evidence; (4) the

sentence was procedurally unreasonable; and (5) it was

substantively unreasonable.1 Jones requests we vacate his

conviction and remand for a new trial, or vacate his sentence

and remand for resentencing. For the following reasons, we

reject each of Jones’s arguments and thus affirm the jury’s

conviction and the District Court’s sentence.

I. Background

The facts here are extensive, but we only discuss those

directly pertinent to Jones. In 2000, when Jones was a teenager,

1

The District Court had jurisdiction under 18 U.S.C. § 3231.

We have appellate jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a).

3

he joined the Double II Bloods with his friend Samuel Wright.

As part of the gang’s formal initiation process, he pledged that

he would kill for the Bloods. The East Orange, New Jersey sect

of the Bloods had approximately 30 to 50 members at any given

time. Jones and Wright were low-ranking “foot soldiers,” and

sold heroin for the gang at a designated street corner in East

Orange.

The gang structure was well-organized and included

weekly meetings. At these meetings, senior-ranking members

would discuss drug dealing and retaliating against other gangs,

and members would pay weekly dues to purchase firearms and

post bail for incarcerated gang members, among other things.

In October 2001, at one such meeting, one of the gang’s leaders

designated Jones and Wright to carry out a retaliatory act of

violence against members of a rival gang involved in stabbing

a member of the Double II Bloods and selling drugs in its

territory. As part of the gang’s hierarchy, foot soldiers, like

Jones and Wright, were required to follow the orders of more

senior-ranking members. In doing so, particularly by

committing acts of violence, a foot soldier could prove his

loyalty and maintain or enhance his reputation and standing

within the gang.

Jones and Wright were instructed to travel to a particular

street where the rival gang members lived and to shoot

whomever they saw. According to trial testimony of other gang

members who attended that meeting, Jones and Wright were told

4

to “RIP” (i.e., “Rest In Peace” or kill) their targets. They

received loaded firearms and were driven to the location by

another gang member, Tyheed Parker, who was to verify that

the shooting occurred as instructed. When they reached the

location, they saw several people standing on a porch. From an

adjacent alley, Wright shot at the porch at least two times and

then Jones shot at least three times, although the first shot did

not fire because he still had on the gun’s safety. A witness who

heard the shots testified that he saw one man hit in the chest by

the bullets. The victim was in critical condition, but survived.

After the shooting, Jones and Wright were lauded by other gang

members for their actions.

Jones was arrested in 2004. He was charged with other

Double II Bloods in a Third Superseding Indictment. After a

jury trial, he was convicted under VICAR of three counts of

racketeering: conspiracy to commit murder and attempted

murder, both in violation of 18 U.S.C. § 1959(a)(5), and assault

with a dangerous weapon, in violation of § 1959(a)(3). He was

also convicted of possession and discharge of a firearm for a

violent crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) and

(iii). All offenses stemmed from the October 2001 shooting

described above. After a jury convicted Jones on all counts, the

District Court sentenced him to 264 months’ imprisonment.

II. Voir Dire

5

The first challenge Jones raises is to the jury selection

process. He argues that the jury was tainted because of local

publicity and information during voir dire related to his co-

defendants, violating his Fifth Amendment due process right and

Sixth Amendment right to an impartial jury. When voir dire

began, Jones was one of seven co-defendants. Prior to the

parties exercising their peremptory strikes, all of Jones’s co-

defendants pled guilty. Jones requested that the District Court

strike the panel and restart the entire voir dire process with a

new jury pool. He believed the jurors were prejudiced by the

potential knowledge of the guilty pleas and the voir dire

questions prior to the pleas that concerned violent crimes of

other co-defendants and not Jones. At that point, the jury

selection process had taken well over one month, the District

Court had pre-qualified approximately 40 potential jurors out of

a pool of approximately 360 based on a detailed questionnaire,

the attorneys were deeply involved in the process of questioning

jurors, and over 50% of the pool that had been dismissed for

cause felt a bias towards gangs.

The Court denied the request, but recognized that it

would need to proceed with several ameliorative, or

“screening,” instructions and make further inquiries of the

remaining pool to ensure an impartial jury. To that end, it

requested and received draft instructions from Jones. The Court

instructed the potential jurors not to speculate why Jones was on

trial alone. It also informed the jury that the case was narrowed

to the specific racketeering charges against Jones, and instructed

6

that they disregard anything they heard or read about the charges

against the co-defendants during voir dire, such as the multiple

murder charges related to other defendants mentioned in the

preliminary statement. Then it inquired whether any of the

potential jurors had seen or heard news reports about the case.

Following these actions by the Court, both sides were able to

exercise their peremptory strikes.

The Sixth Amendment guarantees the right to be tried

“by an impartial jury.” U.S. Const. amend. VI. An “impartial

jury consists of nothing more than ‘jurors who will

conscientiously apply the law and find the facts.’” Lockhart v.

McCree, 476 U.S. 162, 178 (1986) (emphasis in original)

(quoting Wainwright v. Witt, 469 U.S. 412, 423 (1985)); see also

Smith v. Phillips, 455 U.S. 209, 217 (“Due process means a jury

capable and willing to decide the case solely on the evidence

before it, and a trial judge ever watchful to prevent prejudicial

occurrences and to determine the effect of such occurrences

when they happen.”). Jones complains of a defect in the jury

selection process known as voir dire. “Voir dire is conducted

under the supervision of the trial court and is left to its sound

discretion.” United States v. DePeri, 778 F.2d 963, 971–72 (3d

Cir. 1985) (citing Ristaino v. Ross, 424 U.S. 589, 594 (1976)).

We will determine that a district court abused its discretion

when a defendant “demonstrate[s] clearly that the jurors

possessed ‘such fixed opinions that they could not judge

impartially the guilt of the defendant.’” Id. at 972 (quoting

Patton v. Yount, 467 U.S. 1025, 1035 (1984)).

7

Our conclusion that the District Court did not abuse its

discretion, such that Jones’s constitutional rights were not

infringed, is guided by the Court’s extensive actions to ensure

impartiality. Jones first argues that the potential jurors may

have been unduly influenced by local news outlet reports

concerning the co-defendants’ guilty pleas. We believe that the

Court’s repeated instruction on this point and further

questioning were sufficient.2 See United States v. Provenzano,

620 F.2d 985, 995 (3d Cir. 1980) (stating that it is a rare case in

which adverse pretrial publicity will create a presumption of

prejudice that overrides the jurors’ assurance that they can be

impartial). Jones cannot establish that “those who actually

served on his jury lacked a capacity to reach a fair and impartial

verdict based solely on the evidence they heard in the

courtroom.” Rock v. Zimmerman, 959 F.2d 1237, 1253 (3d Cir.

1992) (citations omitted). This is particularly true because the

news articles did not reference Jones. Even so, the Court

dismissed one juror who had seen a newspaper article

concerning the guilty pleas of his former co-defendants, and

further ensured through direct questioning that any other jurors

who had seen a news report could remain impartial. In any

2

At the beginning of voir dire, the Court instructed the

potential jurors to keep themselves “free from any outside

influence in the media regarding criminal justice issues,”

specifically related to “stories about gangs.” In its questioning

after the co-defendants pled guilty, the Court repeated the

instruction and asked if any of the potential jurors had “not

followed that instruction.”

8

event, if jury selection were restarted, Jones would have

encountered this same issue with any new jury pool, which is

not uncommon when a particular crime is newsworthy. See,

e.g., DePeri, 778 F.3d at 972 (finding that pretrial publicity did

not prejudice defendants’ case where there was no evidence of

juror partiality). In that situation, the Court would have handled

jury selection in the same manner it did here.

Furthermore, the Court’s cautionary instruction to the

potential jury regarding the absence of the co-defendants who

pled guilty adequately reduced the risk of prejudice to Jones.

We have come to similar conclusions when presented with this

type of argument in our prior cases. See, e.g., United States v.

Gambino, 926 F.2d 1355, 1364 & n.7 (3d Cir. 1991) (finding no

prejudice where the court instructed the jury not to infer

anything from the co-defendant’s absence after he pled guilty);

United States v. Panepinto, 430 F.2d 613, 615 (3d Cir. 1970)

(finding no prejudice when four of ten defendants pled guilty or

had their trials severed). The cases cited by Jones to support a

finding of prejudice and violation of the right to an impartial

jury were more offensive situations, concerning the defendant

directly, and thus are unpersuasive in this context. See, e.g.,

Gov’t of the Virgin Islands v. Parrott, 551 F.2d 553, 554 (3d

Cir. 1977) (finding defendant denied right to fair trial when

three of the jurors that convicted the defendant had also been on

jury that convicted him less than one month earlier for

possession of firearm); Griffin v. United States, 295 F. 437, 439

(3d Cir. 1924) (finding jury not impartial where newspaper

9

article read by jurors stated defendants had offered to plead

guilty and confessed, but were rejected because the evidence

against them was “so overwhelming”).

We conclude the same regarding Jones’s claim about the

charges related solely to his co-defendants. The Court’s limiting

instruction to the potential jurors was sufficient. It listed the

racketeering offenses and firearm offense that Jones was

charged with and differentiated those from the other offenses

connected to his co-defendants. Jones argues that the Court’s

instruction was insufficient because it did not indicate that all of

his offenses were tied to one event. We don’t view this

omission as a defect in the instruction or an abuse of the Court’s

discretion. It accurately described each of the offenses charged

against Jones in the Third Superseding Indictment, and although

it could have included the date of the event in its description, it

was not required to do more.

As for Jones’s claim that the jury questionnaire tainted

the jury pool, both parties were substantially involved in crafting

it and even if jury selection began anew with Jones as the only

defendant, it would not have been substantially different. As the

Government points out, it appears only one question specifically

referred to Jones’s co-defendants. (It stated the case “involves

allegations that some of the defendants were involved in a

multiple-year narcotics distribution conspiracy,” and then

generally lists the other offenses, including “murder, attempted

murder, murder conspiracy, [and] the illegal possession of

10

weapons.”) The references to these other offenses were not

detailed and were corrected by the Court in its instruction to the

potential jurors (as described above). The questions referencing

gangs were not solely related to the co-defendants, but also

applicable to Jones’s racketeering charges under VICAR. On

this issue alone, the Court estimated that approximately half of

the jurors dismissed for cause could not be impartial “because

of their attitudes and feelings and belie[fs] and opinions about

folks who were in gangs.”

The mere existence of former co-defendants charged with

additional crimes during voir dire does not automatically taint

the impartiality of the jury, particularly in light of the actions

taken by the Court. Given the nature of the charges against

Jones and the evidence necessarily presented by the Government

to prove its burden, any reasonably astute juror would have

understood that Jones’s crime was a part of a larger gang

organization involved in violent and drug-related activities. In

fact, many potential jurors could not put aside their general

prejudices against gangs and evaluate the case against Jones

impartially. The Court dismissed those jurors. Under the

requirements of VICAR, the Government must show at trial that

Jones was a part of an enterprise engaged in violent racketeering

offenses. Re-impaneling a jury would not eliminate these

obvious facts or the ability of a well-vetted and impartial juror

to separate the offenses charged against Jones from those of his

fellow gang members.

11

We recognize that perfect jury impartiality is

unattainable. See Smith, 455 U.S. at 217 (“[I]t is virtually

impossible to shield jurors from every contact or influence that

might theoretically affect their vote.”). Indeed, the District

Court stated that “[t]here’s never a perfect, perfect scenario.”

Certainly in every trial, no matter the charges, each juror brings

to the proceedings his or her own experiences. Respecting this,

we do not find an abuse of discretion where the District Court

has exerted substantial effort in questioning potential jurors

regarding their ability to be impartial and keep an open mind,

particularly on specific issues, and instructed the jury as

cautiously as was done here. Cf. United States v. Guzman, 450

F.3d 627, 629 (6th Cir. 2006) (noting the “well-established

presumption of juror impartiality . . . as well as the equally

important presumption that jurors followed the trial court’s

instructions”) (citations omitted). Moreover, Jones does not

attempt to suggest that any particular juror was biased.

Accordingly, we conclude that Jones’s constitutional rights were

not violated by the voir dire process.

III. Proof of Conspiracy

The second claim Jones raises is a Fifth Amendment due

process challenge to his conviction for murder conspiracy under

VICAR, 18 U.S.C. § 1959(a)(5). He argues that no reasonable

jury could have concluded that the Government proved the

conspiracy beyond a reasonable doubt. The District Court

rejected this argument when Jones moved for judgment of

12

acquittal under Federal Rule of Criminal Procedure 29 after

trial. We conclude the same.

We apply the same standard as the District Court in

reviewing the question whether a rational jury could have found

the elements of the offense beyond a reasonable doubt. United

States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998). Our standard

is highly deferential. Id. We do not weigh the evidence or

determine the credibility of the witness. Rather, we “view the

evidence in the light most favorable to the Government, . . . and

will sustain the verdict if any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.” Id. (internal citation omitted).

Jones argues that the Government failed to prove an

agreement to commit murder as the object of the conspiracy.

The jury convicted Jones under the VICAR statute for

conspiring 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).

VICAR was enacted by Congress in 1984 as a violent crime

corollary to the RICO statute.3 VICAR provides penalties for

3

RICO, otherwise known as the Racketeer Influenced and

Corrupt Organizations Act, 18 U.S.C. §§ 1961–1963, was

enacted in 1970 and intended to be used to prosecute the Mafia

as well as others who were actively engaged in organized crime;

its application has become more widespread, also covering other

business organizations. RICO defines “racketeering activity”

13

similar crimes set forth in RICO, such as murder, assault,

kidnapping, and threats made in connection with a racketeering

enterprise. Id. § 1959(b)(1) (“‘racketeering activity’ has the

meaning set forth in [RICO, 18 U.S.C. §] 1961 of this title”).

In viewing the evidence in the light most favorable to the

Government, this claim fails. Four gang members testified

against Jones, including Wright and Parker, both of whom were

directly involved in the October 2001 incident. They testified

that the purpose of the October meeting was to select members

to carry out the violent act of retaliation against the rival gang

for the stabbing of a Double II Bloods’ member. According to

the trial testimony, Jones and Wright were dispatched “[t]o kill”

or “RIP meaning ‘rest in peace’ them.” The gang’s leaders

directed Jones and Wright to a particular street corner in East

Orange and supplied them with loaded guns. Parker was also

sent to confirm that the shooting took place as ordered. As a

Double II Bloods’ foot soldier, Jones was required to follow the

orders of senior members and had sworn to kill for the gang

during his initiation. Given this overwhelming evidence, we

conclude a rational jury could have found all elements of the

murder conspiracy charge beyond a reasonable doubt.

broadly, including violations of state statutes against gambling

and extortion to securities fraud and acts of terrorism.

§ 1961(1). An “enterprise” “includes any individual,

partnership, corporation, association, or other legal entity, and

any union group or individuals associated in fact although not a

legal entity.” § 1961(4).

14

IV. Rules 401 and 403

Jones’s third challenge concerns Federal Rules of

Evidence 401 and 403. He argues that the District Court erred

by admitting irrelevant and prejudicial evidence well beyond the

scope of his racketeering charges. Thus, he requests that his

conviction be vacated and the case remanded for a new trial.

Jones filed a pre-trial motion in limine objecting to

certain categories of evidence under Federal Rules of Evidence

401, 402, 403, and 404(b). At that time, the District Court

denied the motion on all grounds except that it reserved ruling

on Rule 403 until the evidence was presented during trial and

the Court could contemporaneously balance the probative value

against the danger of unfair prejudice.4 Jones also filed a post-

trial motion for a new trial pursuant to Federal Rule of Criminal

Procedure 33, claiming unfair prejudice under Federal Rule of

Evidence 403. The District Court denied this motion.

On appeal, Jones claims that certain categories of

evidence presented by the Government at trial related only to the

broad time frames and the counts against his former co-

4

Federal Rule of Evidence 403 states: “Although relevant,

evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative

evidence.”

15

defendants, yet were improperly let in by the District Court

“under the guise of proving the ‘enterprise’ and ‘racketeering

activity’ elements of the VICAR charges against [him].”

Appellant’s Br. at 7. Essentially, he contends that this evidence

is not relevant under Rule 401. In arguing that the evidence is

also “unduly prejudicial,” Jones claims the proofs should have

been tailored to a “much more narrow time frame,” specifically

tied to the events in October 2001. Id. He lists eight categories

of evidence introduced by the Government as irrelevant and

prejudicial: (1) the 2000 murder by a senior leader of the Double

II Bloods, including a photograph and expert testimony

regarding the autopsy; (2) the brutal face slashing of a Double

II Bloods’ gang member by another member while in jail,

ordered by a senior gang leader; (3) the recovery of an

abandoned Cadillac in East Orange in 2000 containing a gun,

heroin, and cocaine; (4) testimony about a heroin conspiracy

involving the Double II Bloods, including frequent trips to New

York City to purchase drugs in 2000; (5) testimony about a gun-

trafficking conspiracy involving the Double II Bloods in 2002,

including firearms put into evidence; (6) testimony concerning

at least three other shootings involving rival gangs; (7)

information about the Bloods’ history dating back to 1993; and

(8) information about gang-related clothing, graffiti, and hand

signals.

The District Court’s decision to admit evidence pursuant

to Federal Rules of Evidence 401 and 403 is reviewed for abuse

of discretion. United States v. Hans, 738 F.2d 88, 91 (3d Cir.

16

1984) (citing United States v. Dalfonso, 707 F.2d 757, 762 (3d

Cir. 1983)). Where a court defers its decision on a motion in

limine and the defendant fails to renew his objection during trial,

the review is for plain error. Walden v. Georgia-Pacific Corp.,

126 F.3d 506, 520 (3d Cir. 1997) (citing Fed. R. Evid. 103(a)).

The Government argues that we should apply a plain

error standard of review to Jones’s Rule 403 challenge because

he only raised his objections pre- and post-trial, but failed to

object to each category of evidence during trial. It made the

same argument to the District Court during a hearing on the

post-trial motions, specifically referring to “the Blood beads and

the bandana and the photographs of young men standing round

wearing red,” which Jones did not object to at trial and “came in

through consent.” The Court rejected this argument, noting that

it and the parties were vigilant about Rule 403 issues throughout

the trial (thus creating a continuing objection), and that a

specific objection on each issue was not necessary. Rather than

dive into this thorny question to determine the appropriate

standard of review for each category of evidence, we believe

that the District Court did not abuse its discretion, and thus

satisfies this higher standard of review.

Turning to the substance of Jones’s claims, the statutory

language of VICAR is broad, in that it covers violent crimes that

might otherwise be prosecuted by local authorities. A violation

under this statute has five elements: (1) there was an

“enterprise,” (2) that engaged in “racketeering activity,” (3)

17

affecting interstate or foreign commerce (jurisdictional element),

(4) and the defendant committed a crime of violence, (5) “for the

purpose of gaining entrance to or increasing or maintaining his

position in the enterprise.” 18 U.S.C. § 1959(a); see also United

States v. Banks, 514 F.3d 959, 964 (9th Cir. 2008). Jones

contends that these elements restrict the Government’s evidence

to what is directly tied to the October 2001 shooting, and the

question turns on “just how much ‘enterprise’ and ‘racketeering’

activity evidence is permitted.” Appellant’s Br. at 37.

Similar to RICO, a VICAR “‘enterprise’ includes any

partnership, corporation, association, or other legal entity, and

any union or group of individuals associated in fact although not

a legal entity, which is engaged in, or the activities of which

affect, interstate or foreign commerce.” 18 U.S.C. § 1959(b)(2).

This expansive definition must have three characteristics: “a

common purpose shared by the individual associates; some

continuity of structure and personnel; and structure distinct from

that inherent in the racketeering activity alleged.” United States

v. Crenshaw, 359 F.3d 977, 991 (8th Cir. 2004) (citation

omitted); see also U.S. Attorney’s Manual § 9-110.812(C)

(“Organized Crime and Racketeering”). The Seventh Circuit

Court of Appeals has said that “[i]t is difficult to comprehend

how one could prove the existence of an enterprise comprised of

a group of individuals associated in fact, and organized solely

for the purpose of committing crimes, without presenting

evidence of the crimes that detail the structure, common

purpose, and continuity of the charged enterprise.” United

18

States v. Salerno, 108 F.3d 730, 739 (7th Cir. 1997) (internal

quotations omitted). Not surprisingly, to prove this element in

a VICAR case, courts have sanctioned evidence of other crimes

committed by members of the organization and not the

defendant. See, e.g., United States v. Brady, 26 F.3d 282,

285–88 (2d Cir. 1994); United States v. Coonan, 938 F.2d 1553,

1561 (2d Cir. 1991); see also United States v. DiSalvo, 34 F.3d

1204, 1221 (3d Cir. 1994) (allowing evidence of uncharged acts

to prove existence of an enterprise and racketeering in RICO

context). In addition, the Government must prove there is a

“nexus between the enterprise and the crime of violence” and

the “defendant’s relationship to the enterprise.” U.S. Attorney’s

Manual § 9-110.815.

Jones’s charges derive from a large-scale multi-year

investigation of the East Orange Double II Bloods involving

over 40 gang members. All of Jones’s fellow gang members

pled guilty to various racketeering, drug, and violent crime

offenses, leaving Jones as the sole defendant standing trial.

Clearly the Government devoted substantial time and resources

in developing its case because a trial with seven co-defendants

required presentation of an extensive amount of evidence.

When Jones became the only defendant, however, the

Government took steps to pare down this evidence. As a result

of the Government’s winnowing, a trial expected to last up to

six months was reduced to five full days of testimony. At the

post-trial hearing, the Government noted that, of the 20

witnesses who testified at Jones’s trial, 16 testified about the

19

events of October 2001.

At the outset, we quickly dispose of Jones’s Rule 401

challenge. As a general rule, “all relevant evidence is

admissible.” Fed. R. Evid. 402. Evidence is “relevant” if its

existence simply has some “tendency to make the existence of

any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the

evidence.” Fed. R. Evid. 401. Relevant evidence encompasses

a broad scope of proof, particularly here, where the Government

bears the burden of proving beyond a reasonable doubt all five

of VICAR’s elements, including “enterprise” and “racketeering

activity.” The Court took great care in considering and ruling

on Jones’s motion in limine. In denying the pre-trial motion

based in part on Rule 401, the Court stated:

[T]he Government has a fairly dramatic amount

of story to tell in order to meet the requirements

of VICAR, resting as they do in the requirements

of RICO, because, in fact, what the Government

is doing is using a statute that takes what appears

to be an isolated incident of a state crime nature

and puts it in a larger context, makes it Federal,

and punishes it according to Federal law.

We do not agree with Jones’s argument that any

testimony regarding events after the October 2001 shooting is

irrelevant. The facts related to post-2001 events stem from the

20

overarching gang enterprise and racketeering activity prior to

2001. In this context, we cannot say that this evidence was not

relevant. Thus, we do not believe the District Court abused its

discretion in denying Jones’s motion.

Relevant evidence may be excluded, however, “if its

probative value is substantially outweighed by the danger of

unfair prejudice.” Fed. R. Evid. 403. As to Jones’s motion in

limine, the Court reserved judgment on the question of prejudice

under Rule 403 and recognized that determining where to “draw

the line” was a tough call. In denying his motion for a new trial

based on prejudice, the Court explained the process throughout

trial and why it was denying the motion. The Court stated that

“the [G]overnment responded to the 403 elements of the

prejudic[e] arguments very specifically by tailoring this case

with great rigor to a focused environment[,] . . . . arguably[] less

than 25 percent on the enterprise.” It found the prejudice

argument “not persuasive because of the vigilance with which

all sides met the challenge early on,” and that “at every proper

and reasonable point in the case when the [prejudice] argument

could be made” there was a sidebar discussion. Some

evidentiary rulings “went in favor of the prosecution and some

of them went in favor of the defendant.”

The cases Jones cites in support of his argument are

unpersuasive in this context. United States v. Murray concerned

minimally probative, but highly prejudicial, evidence of an

uncharged murder the defendant allegedly committed years

21

before while on trial for another murder in furtherance of a

continuing criminal enterprise. 103 F.3d 310, 315–16, 319 (3d

Cir. 1997) (charging defendant under 21 U.S.C. § 848 for

“intentional killing in furtherance of a continuing criminal

enterprise” and drug offenses). We concluded that the evidence

“‘weigh[ed] too much with the jury and . . . so overpersuade[d]

them as to prejudice one with a bad general record and deny him

a fair opportunity to defend against a particular charge.’” Id. at

320 (alteration in original) (quoting United States v. Sampson,

980 F.2d 883, 886 (3d Cir. 1992)). Similarly, United States v.

Hans dealt with evidence from an FBI agent who testified that

the defendant, who was on trial for bank robbery and assault,

was well known to the local authorities as a bank robber. 738

F.2d 88, 95–96 (3d Cir. 1984). We determined that this

testimony was unnecessary to prove the crime and highly

prejudicial because it left the jury with the “indelible impression

that . . . [the defendant] was a professional bank robber.” Id. at

94.

We based our decisions in Murray and Hans on evidence

of serious crimes and character directly connected to each

defendant, yet unnecessary for the Government to prove its case

on the elements of the specific charged crime. Here, as we

stated in discussing Jones’s Rule 401 challenge, the gang-related

evidence Jones complains of went to proving the VICAR

offenses, specifically the expansive elements of “enterprise” and

22

“racketeering activity.”5 Jones was proven to be a member of

the gang, but in each of the evidentiary categories he lists, he

was not directly implicated in the violent crimes and other

racketeering activities of the gang. See, e.g., Brady, 26 F.3d at

285–88 (discussing that evidence of murders the defendants had

not committed was relevant under VICAR and was not “unduly

prejudicial” because “there was no suggestion that the

defendants committed any of the murders at issue”); Coonan,

938 F.2d at 1561 (stating that the defendant was not “unfairly

prejudiced” by evidence of “gruesome murders and

dismemberments” committed by other gang members that was

“probative of the existence of the charged enterprise” under

RICO and VICAR).

Therefore, unlike Murray and Hans, we do not believe

5

For example, the evidence related to the slashing of another

Bloods’ member and the other shootings tended to show the

gang’s hierarchal structure and expectations that lower-ranking

members, such as Jones, carry out the violent acts of retaliation,

including murder, against other gangs to ensure one’s position

within the Bloods, solidify its violent reputation, and protect its

drug-distribution territory from rival gangs, among other things.

Also, evidence related to drug and gun trafficking connected the

enterprise to the interstate commerce element and connected

Jones’s drug dealing activities within the gang and the gun given

to him to use in the October 2001 shooting to the ongoing

racketeering activities of the enterprise of which Jones was a

member.

23

the evidence overwhelmed the jury and prejudiced their

judgment concerning the specific charges against Jones in this

case. While some degree of prejudice arguably results from any

presentation of violent crime and drug evidence, in this instance

we do not believe the Court abused its discretion in light of the

requirements under VICAR by admitting the challenged

evidence at trial.6

V. Sentencing

The last two challenges Jones raises concern the

procedural and substantive reasonableness of his sentence.7

Following the Supreme Court’s decision in United States v.

6

The District Court stated that its “mantra” throughout trial

had been “403, 403, 403, let’s be aware of it,” and indicated that

throughout the case that prejudice was the “foghorn that’s been

blown again and again and again,” recognizing that it had to

determine where to “draw the line.”

7

Jones also claims the District Court violated his Fifth and

Sixth Amendment right to a jury trial by engaging in improper

fact-finding to trigger the ten-year statutory mandatory

minimum sentence for discharging a firearm in violation of 18

U.S.C. § 924(c)(1)(A)(iii). He concedes, however, that we

foreclosed this claim in United States v. Williams, 464 F.3d 443,

449 (3d Cir. 2006) (affirming statutory mandatory minimum

sentence based on district court’s finding that defendant

discharged firearm), and thus merely preserves this argument for

further review purposes.

24

Booker, 543 U.S. 220 (2005), the Sentencing Guidelines are

now advisory. See Gall v. United States, 128 S.Ct. 586, 594

(2007). We review a sentence under a deferential “abuse of

discretion” standard. Id. “[O]ur role is two-fold. We must first

ensure that the district court committed no significant procedural

error in arriving at its decision.” United States v. Wise, 515 F.3d

207, 217 (3d Cir. 2008). Examples of procedural errors include

“‘failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider

the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the

chosen sentence.’” Id. (quoting Gall, 128 S.Ct. at 597). With

respect to the applicable § 3553(a) factors, the court need not

“discuss and make findings as to each of [them] if the record

makes clear [it] took the factors into account in sentencing” and

gave them “meaningful consideration.” United States v.

Cooper, 437 F.3d 324, 329 (3d Cir. 2006) (internal citations

omitted). Instead, a sentencing judge “‘should set forth enough

to satisfy the appellate court that he has considered the parties’

arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.’” United States v. Lessner, 498 F.3d

185, 203 (3d Cir. 2007) (quoting Rita v. United States, 551 U.S.

338, 127 S.Ct. 2456, 2468 (2007)).

If we conclude that a court committed no procedural

error, we then review the substantive reasonableness of the

sentence. “As long as a sentence falls within the broad range of

possible sentences that can be considered reasonable in light of

25

the § 3553(a) factors, we must affirm.” Wise, 515 F.3d at 218

(citation omitted).

First, Jones argues that his sentence is procedurally

unreasonable because the District Court never formally ruled on

his motion for a downward departure based on overstatement of

his criminal history. Prior to sentencing, both parties fully

briefed this issue. The Government conceded the possibility of

a departure in its brief, but argued that the Pre-Sentence Report

(the “PSR”) prepared by the Probation Office accurately

reflected Jones’s criminal history. The PSR recommended a

criminal history category of V, while Jones argued for II. The

Court adopted the PSR’s recommendation at the sentencing

hearing.

We continue to treat “discretionary denials of departure

motions in calculating sentencing ranges” the same as we did

pre-Booker. United States v. Jackson, 467 F.3d 834, 839 (3d

Cir. 2006). “We do not have jurisdiction to review discretionary

decisions by district courts to not depart downward.” United

States v. Vargas, 477 F.3d 94, 103 (3d Cir. 2007).

Although the Court did not explicitly deny Jones’s

motion, it was fully informed on the issue and did not grant his

requested departure. There is nothing in the record to indicate

that the Court was acting under the “mistaken belief that it

lack[ed] the discretion” to reduce the criminal history category

under the evidence before it. Id. (“Jurisdiction [to review the

26

denial of a departure] arises . . . if the district court’s refusal to

depart downward is based on the mistaken belief that it lacks

discretion to do otherwise.”). Indeed, the Government conceded

the plausibility of a departure. See Jackson, 467 F.3d at 839

(stating that even where the court did not explicitly rule on the

departure motion, “we would not remand for re-sentencing when

the Government’s arguments to the district court ‘concede[d] the

plausibility of the downward departure’”) (alteration in original)

(citation omitted). Thus, to the extent Jones challenges the

Court’s discretionary decision not to reduce his criminal history

category of V when the evidence before the Court—specifically

his two prior convictions related to his drug dealing for the

gang—supports the PSR’s recommendation, we will dismiss this

argument for lack of appellate jurisdiction.

Jones also claims that his sentence is procedurally

unreasonable because the District Court did not adequately

consider the disparity between his sentence and his co-

defendant, Wright, under 18 U.S.C. § 3553(a)(6) (“the need to

avoid unwarranted sentence disparities among” similarly

situated defendants). This argument, while plausible, is

ultimately unconvincing. Wright was the second shooter in the

October 2001 incident from which Jones’s charges stemmed.

Indeed, there is an 18-year disparity between Wright’s sentence

of 48 months’ imprisonment and Jones’s of 264 months’

imprisonment. The Court, however, gave “meaningful

consideration” to this disparity, noting that Wright and Jones

were not similarly situated in all respects. See Wise, 515 F.3d

27

at 217; Cooper, 437 F.3d at 329. Unlike Jones, Wright took

substantial ameliorative actions, which were later reflected in his

lower sentence. He pled guilty, accepted responsibility for his

actions, denounced his gang affiliation with the looming threat

of violent retaliation, and substantially cooperated with the

Government, in part by testifying at Jones’s trial.

The Court instead likened Jones to several of his other

co-defendants who pled guilty and received sentences between

15 and 34 years’ imprisonment. In fact, the Court granted him

a 44-month downward variance from the bottom of the

recommended Guidelines range “[t]o achieve [an] appropriate

balance among sentences.” Jones was the last to be sentenced

and the Court stated that “[p]eople were sentenced to what was

deemed to be by this Court the right amount of time under all of

the circumstances.” Accordingly, the Court did not err in its

consideration of the § 3553(a) factors applicable to Jones.

Finally, Jones argues that his sentence is substantively

unreasonable. This claim is also unpersuasive. The District

Court extensively discussed the reasons underlying his below-

Guidelines sentence. The sentence was long, but it was

connected to the seriousness of the crime and the “awful societal

impact” of the gang on East Orange. The Court noted that the

Double II Bloods had turned the city into a “war zone.” In

particular, the randomness of Jones’s actions that “savagely

wounded” an innocent person demonstrated that he “didn’t care

who got hit.” It pointed out that even after Jones’s first round

28

did not fire because the gun’s safety was still on, he removed it

and continued to shoot at least two more live rounds. On

balance, it also took into account the support of his family and

that he was only 18-years old at the time of the shooting. It

granted the 44-month variance because Jones was young and

“worth saving.” Consequently, there is no question the sentence

was reasonable.

*****

For these reasons, we affirm Jones’s jury conviction and

the District Court’s sentence.

29