                                                                                                                           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Precedential or Non-Precedential: Precedential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
