U.S. v. Jones

• Decision Date: 26 January 1999
• Docket Number: Criminal No. 3:98cr221.
• Parties: UNITED STATES of America v. Chad Ramon JONES, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

36 F.Supp.2d 304

UNITED STATES of America v. Chad Ramon JONES, Defendant.

Criminal No. 3:98cr221.

United States District Court, E.D. Virginia, Richmond Division.

January 26, 1999.

COPYRIGHT MATERIAL OMITTED

David Preston Baugh, Richmond, VA, for Defendant.

Stephen David Schiller, U.S. Attorney's Office, Richmond, VA, for U.S.

Before RICHARD L. WILLIAMS, Senior District Judge, and JAMES R. SPENCER and ROBERT E. PAYNE, District Judges.

MEMORANDUM OPINION

PER CURIAM.

This matter is before the Court on defendant's motion to dismiss the indictment. Defendant argues that his prosecution in federal, rather than state, court is an unconstitutional attempt to avoid a jury pool consisting of greater numbers of African-Americans. For the reasons stated below, the Court is compelled to DENY the motion.

I. FACTS

The defendant, Chad Ramon Jones ("Jones"), is an African-American. On May 31, 1998, he was operating his motor vehicle in the City of Richmond. He had two passengers in his vehicle. A Richmond Deputy Sheriff observed defendant proceed in the wrong direction on a one-way street. The police officer stopped defendant's vehicle and determined that defendant's driver's license was suspended. During a search of the vehicle subsequent to the stop, the police officer discovered marijuana, a nine-millimeter pistol, and drug paraphernalia.¹

The defendant was initially charged with violating statutes of the Commonwealth of Virginia ("Virginia" or the "Commonwealth") and was slated for prosecution in state court. However, a program designated "Project Exile" resulted in the transfer of Jones' case for prosecution in this Court. On July 8, 1998, a federal grand jury issued a four-count indictment against Jones.² The federal indictment covered precisely the same conduct originally prosecuted in the state proceedings. On August 4, 1998, a United States Magistrate Judge released Jones pending trial.

Project Exile is a project jointly undertaken by the Commonwealth's Attorney for the City of Richmond and the United States Attorney for the Eastern District of Virginia. It was conceived in November 1996 and implemented in the City of Richmond in February 1997. The Program was later expanded to the City of Norfolk. Both cities suffer from high rates of violent crime. While Richmond possesses only three percent of the Commonwealth's population, it accounts for twenty-seven percent of its homicides.

The stated goal of Project Exile is to reduce violent crime by federally prosecuting firearm-related crimes whenever possible. Under Project Exile, local police review each firearm-related offense to determine whether the conduct alleged also constitutes a federal crime. See, e.g., 18 U.S.C. §§ 922(g) and 924(g) (prohibiting the possession of firearms by certain persons).³ In those cases in which the conduct alleged also constitutes a federal crime, local police refer the matter to the United States Attorney for the Eastern District of Virginia. If the United States Attorney obtains an indictment charging the defendant with federal firearm-related crimes, then the Commonwealth's Attorney drops the state charges, and the case proceeds in federal court.

Project Exile has resulted in the prosecution of several hundred defendants in federal court. To assist federal prosecutors with this additional workload, one Assistant Commonwealth's Attorney (of the thirty assigned to the office of the Commonwealth's Attorney for the City of Richmond) and one prosecutor from the Office of the Attorney General are assigned as a Special Assistant United States Attorneys ("Special AUSAs"). No additional resources are provided the federal judiciary, prosecutors, or law enforcement. Project Exile is widely publicized on television, radio, billboards, and buses. A professional advertising agency is responsible for this publicity. The advertising agency is paid with private funds donated by the "Project Exile Citizen Support Foundation."

The parties were unable to provide the Court precise empirical data concerning either the race of Project Exile defendants or the racial composition of the relevant jury pools. However, the parties agree to these general facts. Both Norfolk and Richmond have significant African-American populations. The vast majority, and perhaps as many as ninety percent of the defendants prosecuted under Project Exile are African-American. The jury pool for the Circuit Court for the City of Richmond is approximately seventy-five percent African-American. The jury pool for the Richmond Division of the Eastern District of Virginia is drawn from a broader geographic area. In contrast to the state jury pool, it is only about ten percent African-American. At a local Bench-Bar Conference discussing the issue, an Assistant United States Attorney ("AUSA") stated that one goal of Project Exile is to avoid "Richmond juries." The same admission was made by the AUSA prosecuting United States v. Scates, 3:98cr87, sentencing transcript at 36-37 (E.D.Va. Nov. 24, 1998).

In addition to the racial differences between the relevant jury pools, there are several other relevant comparisons between prosecutions in the state and federal courts. The federal and state statutes prohibiting possession of firearms are not markedly different. Compare 18 U.S.C. § 922(g) with Va.Code Ann. §§ 18.2-308.1:1 through 18.2-308.2:1 and 18.2-308.4. Both federal and state statutes proscribe possession of firearms by felons. See 18 U.S.C. § 922(g)(10) and Va. Code Ann. § 18.2-308.2. Both prohibit persons from possessing firearms during the commission of drug trafficking offenses. Compare 18 U.S.C. § 924(g) with Va.Code Ann. § 18.2-308.4.

The state has no statute that prohibits possession of a firearm by a person who is an "unlawful user of or addicted to any controlled substance." See 18 U.S.C. 922(g)(3). However, the state targets the same general conduct by prohibiting a person who was twice convicted within the previous thirty-six months of a drug-related misdemeanor from possessing a firearm. See Va.Code Ann. § 18.2-308.1:5. The state does not prohibit the possession of a firearm by a person previously convicted of domestic abuse. See 18 U.S.C. § 922(g)(9). Again however, the state has an analogous statute prohibiting possession by one currently subject to a protective order. See Va.Code Ann. § 18.2-308.1:4. In the Court's experience, nearly all Project Exile defendants are prosecuted under one of the four federal statutes cited above.

In some minor regards, the federal statute proscribing possession by prohibited persons is more exhaustive than its state counterpart. The federal statute also prohibits other persons who are rarely, if ever, prosecuted under Project Exile from possessing firearms. See, e.g., 18 U.S.C. § 922(g)(2) (prohibiting possession by fugitives); 18 U.S.C. § 922(g)(6) (prohibiting possession by persons discharged from the Armed Forces under dishonorable conditions); 18 U.S.C. § 922(g)(7) (prohibiting possession by persons who have renounced their citizenship).

In addition to the minor statutory differences cited above, the federal and state systems are governed by different sentencing provisions. In criminal cases, a state jury recommends a sentence. While the Circuit Court Judge is not bound by that recommendation, the recommendation imposes a ceiling, above which the judge may not sentence the defendant. Both the federal and state systems now have sentencing guidelines. The federal guidelines are mandatory. See 18 U.S.C. § 3553(b). The state guidelines are discretionary. Hudson v. Commonwealth, 10 Va.App. 158, 160-61, 390 S.E.2d 509, 510 (1990); see also Fortune v. Commonwealth, 12 Va.App. 643, 651, 406 S.E.2d 47, 51 (1991). Both have abolished parole. See 18 U.S.C. § 3621; Va.Code Ann. § 53.1-165.1.

The basic statutes at issue impose different maximum penalties. The federal statute imposes a maximum penalty of ten years for most violations of Title 18, United States Code, Section 922(g). See 18 U.S.C. § 924(a)(2). This statutory maximum penalty is rarely imposed, however. The sentencing guidelines impose a base offense level of fourteen for possession of a firearm by a prohibited person. See U.S.S.G. § 2k2.1(a)(6). The sentencing guidelines call for a range of imprisonment varying from fifteen to forty-six months for this base offense level, depending upon a defendant's criminal history. See U.S.S.G., ch. 5, pt. A. The state statutes prohibiting possession of firearm by a felon or by a person in possession of controlled substances impose a sentence of one to five years. See Va.Code Ann. § 18.2-308.2., 18.2-308.4, and 18.2-10.⁴ Each system has separate provisions to enhance the sentences of recidivists. The federal guidelines include an "Armed Career Criminal" provision. See U.S.S.G. § 4B1.4. Va.Code Ann. § 53.1-151 B1 represents the state's analogous "three strikes and you're out" provision.⁵

At the inception of Project Exile, the United States Attorney, the Commonwealth's Attorney and the Chief of Police asserted that federal prosecution was necessary because state court judges were ulikely to impose sentences sufficiently severe to serve as sufficient punishment for, or adequate deterrence of, narcotics related firearm offenses. See United States v. Nathan, No. 3:98cr116, Mem. Op. at 23-25, (E.D.Va., July 23, 1998). However, that assertion was disproved by the empirical data for prosecution of cases involving narcotics and firearms offenses for 1993 through 1995 (the last period preceding the inception of Project Exile for which statistics are available). Id. In particular, the data showed that few firearms offenses ever reached the state judiciary for sentencing. And, the same statistics suggested strongly that the paucity of firearms convictions was attributable to the failure to arrest or prosecute such offenses or to the disposition of those offenses by plea bargain. Id.

In addition to the different statutes and punishments in...