Opinion
No. 3:17-cr-00124-2
09-27-2019
UNITED STATES of America v. Maurice Duncan BURKS
John Benjamin Schrader, Assistant U.S. Attorney, Debra Teufel Phillips, U.S. Attorney's Office, Nashville, TN, Ivana Nizich, Assistant U.S. Attorney, Shauna S. Hale, Assistant U.S. Attorney, Department of Justice-Organized Crime & Gang Section, Washington, DC, for Plaintiff. John M. Bailey, IV, CJA Appointment, Brentwood, TN, Eileen M. Parrish, CJA Appointment, Nashville, TN, for Defendant.
John Benjamin Schrader, Assistant U.S. Attorney, Debra Teufel Phillips, U.S. Attorney's Office, Nashville, TN, Ivana Nizich, Assistant U.S. Attorney, Shauna S. Hale, Assistant U.S. Attorney, Department of Justice-Organized Crime & Gang Section, Washington, DC, for Plaintiff.
John M. Bailey, IV, CJA Appointment, Brentwood, TN, Eileen M. Parrish, CJA Appointment, Nashville, TN, for Defendant.
ORDER
WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE
By Order entered August 20, 2019 (Doc. No. 1461), the Court granted Maurice Burks' Motion for a New Trial solely with respect to Counts Ten, Eleven, Thirteen, and Fourteen of the Third Superseding Indictment, and vacated the jury's verdicts relating to the murder of Malcolm Wright at C-Rays on November 3, 2012. As a consequence, Burks stands convicted on the RICO and drug conspiracy counts (Counts One and Two).
On September 4, 2019, the Government appealed this Court's granting of a new trial (Doc. No. 1469). That same day the Government filed a "Notice Regarding Sentencing" (Doc. No. 1470).
Styled as a "notice" perhaps because "[t]he filing of a notice of appeal is an event of jurisdictional significance – it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal," Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982), the filing is in reality a motion because it requests affirmative relief. Specifically, the Government asks that Burks be sentenced on Counts One and Two on one of the dates previously allotted (November 20-22 and November 25-27, 2019) for the sentencing of all of the Defendants in this case. Burks opposes the request (Doc. No. 1482).
In requesting that Burks be sentenced in November, the Government raises a number of arguments, the essence of which is two-fold. First, the Government argues that whether or not Burks was the one who murdered Wright has no bearing on what his sentence should be on the RICO count. Second, the Government asserts judicial economy would be served by sentencing Burks on Counts One and Two in November 2019. The Court finds neither argument persuasive.
The Government is correct that a RICO conspirator "is liable for ‘all acts and omissions of others that were – (i) within the scope of the jointly undertaken criminal activity; (ii) in furtherance of that criminal activity; and (iii) reasonably foreseeable in connection with that criminal activity.’ " (Doc. No. 1470 at 4) (quoting U.S.S.G. § 1B1.3(a)(1)(B) ). The Government is also correct that (1) the jury found Burks was involved in a RICO conspiracy that included acts involving murder, (2) 26 of the 76 overt acts listed in the Third Superseding Indictment related to murder, (3) 6 of the overt acts related to Wright's murder, and (4) only 1 overt act actually charged Burks with Wright's murder. The Government's position that it does not matter whether Burks killed Wright raises more questions than answers, however, and the Government oversimplifies things when it says that Wright's murder has no bearing on Burks' sentence on the RICO count.
There was plenty of evidence presented to the jury establishing that the Gangster Disciples were responsible for a number of murders during the scope of the RICO conspiracy. However, throughout trial, and at least since the return of the Third Superseding Indictment, the Government's position has been that Burks murdered Wright. If not Burks, then whom? Is the Court to assume that Wright was killed by one of the other Gangster Disciples who answered Marcus Darden's call for all hands-on-deck after Brandon Hardison was sucker-punched by Dezorick Ford at Sidelines? Is the Court to just assume that it was a Gangster Disciple who shot Wright, even though C-Rays was packed that night?
The answer to the critical unanswered question – whether Burks murdered Wright – certainly has a bearing on his sentence. This might even be true were the Court to consider Count One as a standalone conviction, and ignore that Burks was charged in five other counts.
Section 2E1.1 of the Guidelines provides that the base offense level for a RICO conviction is the greater of 19 or "the offense level applicable to the underlying racketeering activity." The Sixth Circuit has "held that the test for determining whether conduct qualifies as an ‘underlying racketeering activity’ for sentencing purposes is the relevant conduct test, i.e., that found in U.S.S.G. § 1B1.3." United States v. Corrado, 304 F.3d 593, 607 (6th Cir. 2002) (quoting United States v. Tocco, 200 F.3d 401, 430 (6th Cir. 2000) ). It has also held that "RICO predicate acts ... for which a defendant is convicted necessarily constitute relevant conduct for the purpose of calculating the defendant's base offense level for a RICO conspiracy conviction." Id. Certainly if Burks stood convicted of Wright's murder, this would go a long way towards dampening any arguments he might have about relevant conduct since it was a charged predicate act.
The problem with the unanswered question becomes even more apparent and important when considering the big picture. The Supreme Court "has long recognized that sentencing judges ‘exercise a wide discretion’ in the types of evidence they may consider when imposing sentence and that ‘[h]ighly relevant – if not essential – to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics." Pepper v. United States, 562 U.S. 476, 480, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) (quoting Williams v. New York, 337 U.S. 241, 246–247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) ). In fact, by statute, the Court is required to "impose a sentence sufficient, but not greater than necessary ... (a) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a)(2). This necessarily requires that the Court consider "the nature and circumstances of the offenses and the history and characteristics of the defendant." Id. § 3 (a)(1). The Court should also "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," id. § (a)(4).
"The § 3553(a) factors are used to set both the length of separate prison terms and an aggregate prison term comprising separate sentences for multiple counts of conviction," and "permit a court imposing a sentence on one count of conviction to consider sentences imposed on other counts." Dean v. United States, ––– U.S. ––––, 137 S. Ct. 1170, 1173, 197 L.Ed.2d 490 (2017). "Nothing in the law" requires that the Court "calculate the appropriate term of imprisonment for each individual count" without considering the other counts on which a defendant has been convicted. Id. Instead, the § 3553(a) factors are relevant both to "determining a prison sentence for each individual offense in a multicount case," and to "determining the total length of imprisonment." Id. Thus, knowing more rather than knowing less is important in sentencing, including whether Burks is guilty of murdering Wright. The Government's assertion that judicial economy would be served by sentencing Burks in November has as its basis a number of maybes. Maybe the Sixth Circuit will consolidate the appeals, assuming the Government so moves. Maybe the Sixth Circuit will reverse this Court's grant of a new trial, even though the appellate court "do[es] not second-guess the district court's credibility determinations, but review[s] only for a ‘clear and manifest abuse of discretion.’ " United States v. Lewis, 521 F. App'x 530, 531 (6th Cir. 2013) (citations omitted). And maybe the Government will choose to dismiss Counts Ten, Eleven, Thirteen and Fourteen should the Sixth Circuit affirm this Court's grant of a new trial.
But even if only one of those maybes does not come to pass, the Government's judicial economy argument falters. If the Sixth Circuit does not choose to consolidate, then the Government will be forced to litigate two separate appeals, one relating to the new trial and another relating to the appeals that are sure to be filed after the remaining Defendants are sentenced in November. If the Government does not prevail on appeal, then there may be a new trial on those Counts and another sentencing on those Counts, assuming there is a conviction or if the Government may choose to dismiss those Counts, then there will be only one sentencing, just as there would be if the Court were to sentence Burks at a later date for all of the conduct on which he was convicted.
Moreover, the Government does not adequately consider judicial economy from this Court's perspective. The Court takes its sentencing responsibility seriously, and spends countless hours preparing for each sentencing hearing, just as it will do in relation to the November 2019 sentencing of Burks' Co-Defendants. This is because there is nothing simple or easy about sentencing another human being. Until you have done it, you have no appreciation of the gravity of the responsibility. Because of the need to prevent sentencing disparity, the Court will undoubtedly review material regarding Burks when it prepares for sentencing the other Defendants, but that review will not be at the same depth that would be undertaken were Burks being sentenced at that time. What the Government proposes, however, is the possibility of preparing for, and holding, two sentencing hearings (maybe years apart) for Burks when one will do. That will not only waste the Court's time, but also that of counsel.
The Government's "Notice Regarding Sentencing" (Doc. No. 1470), construed as a motion to set Burks sentencing in November 2019, is DENIED.
IT IS SO ORDERED.