United States v. Aki Jones , 514 F. App'x 229 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-2531
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UNITED STATES OF AMERICA
v.
AKI JONES;
a/k/a Akeem Jones
a/k/a Aki D. Jones
AKI JONES,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 11-cr-00558)
District Judge: Honorable Gene E. K. Pratter
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Submitted Under Third Circuit LAR 34.1(a)
February 14, 2013
Before: HARDIMAN and GARTH, Circuit Judges.
and STARK *, District Judge
(Filed: February 20, 2013)
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OPINION OF THE COURT
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*
The Honorable Leonard P. Stark, District Judge for the District of Delaware sitting
by designation.
HARDIMAN, Circuit Judge.
Aki Jones appeals the District Court’s judgment of sentence. He contends that
hearsay evidence introduced at his sentencing hearing did not have sufficient indicia of
reliability to be considered by the District Court. We will affirm.
I
On November 22, 2010, a street fight involving a large group of teenagers took
place at the intersection of 24th and Turner Streets in Philadelphia. One of the young
women fighting was Jones’s goddaughter. As the fight unfolded, Jones approached the
melee and fired a handgun into the air to disperse the crowd. He then placed the gun into
a car parked nearby and began walking away from the area. The police arrived at the
scene shortly thereafter and were told by a bystander that Jones had fired a gun. The
police apprehended Jones and recovered the gun. On December 5, 2011, Jones pleaded
guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. §
922(g)(1).
Jones’s pre-sentence investigation report calculated his advisory United States
Sentencing Guidelines (USSG) range as 46–57 months’ imprisonment, based on a total
offense level of 21 1 and a criminal history category of III. Prior to sentencing, the
1
Jones’s base offense level was 20 pursuant to USSG § 2K2.1. He received a
four-level enhancement for firing a firearm in connection with another felony offense
pursuant to USSG § 2K2.1(b)(6)(B). Jones received a three-level reduction for
acceptance of responsibility pursuant to USSG § 3E1.1.
2
Government moved for an upward departure from the Guidelines range, arguing that
Jones’s criminal history category underrepresented the seriousness of his criminal past.
In the alternative, the Government argued that an upward variance was warranted in light
of Jones’s history of gun-related crimes. The Government’s motion focused on two
incidents that had not led to convictions: Jones’s alleged shooting of a referee during a
basketball game in July 2008; and his arrest for gun possession in September 2009.
At Jones’s sentencing hearing, the Government presented one witness, former
Philadelphia Police Department Detective James Rago, who testified about his
investigation of the July 2008 shooting. Rago’s investigation concluded that Jones had
shot a basketball referee in the leg and buttocks area because he disagreed with the
referee’s foul calls in a summer league basketball game. During the investigation, Rago
interviewed the injured referee, Benjamin Wright. Although Wright could not identify
the shooter because he was shot from behind, Wright reported that Jones had played in a
basketball game refereed by Wright earlier in the evening. During the game, Jones had
argued with Wright about several calls. Jones told Wright that if he did not change how
he refereed the game, “I’ll foul you.” Wright referred Rago to his nephew, whom he said
was on the basketball court and could identify the shooter.
Rago interviewed the victim’s nephew twice. During the first interview, the
nephew told Rago that he heard a gunshot and then saw Jones, with a gun in his hand,
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standing over his injured uncle. The nephew immediately identified the shooter as Jones,
whom he had seen around the neighborhood almost every day for the month and a half
prior to the shooting. The nephew signed a photograph of Jones, identifying him as the
shooter. At the second interview, the nephew signed a statement prepared by Rago from
his notes of the first meeting. Rago also interviewed three other witnesses to the shooting
who told him that the shooter’s first name was “Aki.” Based on these interviews, Rago
submitted an affidavit of probable cause for Jones’s arrest.
While testifying at Jones’s sentencing hearing, Rago could not remember the
nephew’s name or the names of the witnesses who provided the shooter’s first name.
Rago had retired from the Philadelphia police and the files of his investigation—which
contained the report of his interviews and the nephew’s statement and signed
photograph—had been lost after his retirement. Defense counsel cross-examined Rago
about the absence of police paperwork and his inability to remember the names of
witnesses who had identified Jones. 2 After evaluating this evidence, the District Court
found by a preponderance of the evidence that Jones had shot the basketball referee.
However, the District Court denied the motion for an upward departure, finding that the
2
Prior to cross-examining Rago, defense counsel objected to his direct testimony
and asked that it be stricken from the record because the Government did not provide
defense counsel with the record of Rago’s investigation. The Government maintained
that it had turned over everything it possessed—the affidavit of probable cause, a police
radio report, and a processing ticket. The District Court offered to postpone the hearing
to allow defense counsel to prepare more fully for cross-examination, but, after consulting
with Jones, defense counsel requested that the hearing proceed.
4
issues raised by the Government lent themselves more to the Court’s discretion in the
context of a variance. 3
After detailed consideration of the sentencing factors enumerated in 18 U.S.C.
§ 3553(a), during which the District Court repeatedly noted Jones’s history of gun-related
violence, some of which he committed around children, the Court granted an upward
variance of three months and sentenced Jones to 60 months’ imprisonment to be followed
by three years of supervised release. This appeal followed.
II 4
Jones argues that Rago’s testimony was hearsay evidence that lacked sufficient
indicia of reliability to support its probable accuracy, as required by USSG § 6A1.3(a).
We review this factual question for clear error. See United States v. Givan, 320 F.3d 452,
463 (3d Cir. 2003); United States v. Miele, 989 F.2d 659, 663 (3d Cir. 1993).
The Federal Rules of Evidence do not apply in sentencing proceedings. Fed. R.
Evid. 1101(d)(3). Instead, “[i]nformation used as a basis for sentencing under the
Guidelines must have ‘sufficient indicia of reliability to support its probable accuracy.’”
Miele, 989 F.2d at 663 (quoting USSG § 6A1.3(a)). Under this lower threshold for
3
The Government briefly presented evidence regarding the pending September
2009 gun possession charge. However, the District Court declined to consider it in light
of Jones’s upcoming trial on those charges.
4
The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. Our
jurisdiction lies under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
5
admissibility, evidence that would normally be excluded at trial—such as hearsay—may
be considered during sentencing. See USSG § 6A1.3(a) (“[T]he court may consider
relevant information without regard to its admissibility under the rules of evidence
applicable at trial, provided that the information has sufficient indicia of reliability to
support its probable accuracy.”); see also 18 U.S.C. § 3661 (“No limitation shall be
placed on the information concerning the background, character, and conduct of a person
convicted of an offense which a court of the United States may receive and consider for
the purpose of imposing an appropriate sentence.”); United States v. Watts, 519 U.S. 148,
151–52 (1997); United States v. Grier, 475 F.3d 556, 570 n.9 (3d Cir. 2007) (en banc).
“‘Indicia of reliability’ may come from, inter alia, the provision of facts and details,
corroboration by or consistency with other evidence, or the opportunity for cross-
examination.” United States v. Smith, 674 F.3d 722, 732 (7th Cir. 2012) (internal
citations omitted).
Here, Rago’s testimony had sufficient indicia of reliability for the District Court to
rely upon it. Rago spoke to multiple witnesses in the course of his investigation, several
of whom independently reported that the shooter had an unusual first name, “Aki.” He
twice discussed the incident with the victim’s nephew, who signed a statement and a
photograph identifying Jones as the shooter. This information was recorded in Rago’s
affidavit of probable cause, which was filed a mere nine days after the shooting occurred.
Rago’s testimony during the sentencing hearing was highly detailed, completely
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consistent with the affidavit’s recent account of the investigation, and subjected to cross-
examination by defense counsel.
Rago’s cohesive and consistent account stands in stark contrast to the cases in
which we have found hearsay evidence so unreliable as to preclude admission under the
liberal standards governing sentencing proceedings. In United States v. Miele, we found
that an informant’s hearsay statement regarding the quantity of drugs involved in a
conspiracy was unreliable because the informant had made vastly inconsistent statements
in the trial of a co-conspirator. 989 F.2d at 664. We also noted that there was no
evidence that corroborated the drug quantity estimate credited by the district court. Id. In
United States v. Brothers, we similarly found hearsay evidence unreliable because of
inconsistent statements and a lack of corroboration with the statement credited by the
district court. 75 F.3d 845, 849–53 (3d Cir. 1996). In contrast to the statements at issue
in Miele and Brothers, Rago never gave inconsistent statements; his testimony was not
only internally consistent, but also consistent with and corroborated by the
contemporaneous affidavit of probable cause. See United States v. Leekins, 493 F.3d 143,
151 (3d Cir. 2007) (police reports containing transcribed interviews were sufficiently
reliable in part because of their “detail and internal consistency”).
Jones relies on United States v. Cammisano, 917 F.2d 1057 (8th Cir. 1990), a case
that is easily distinguished. There, the defendant challenged the reliability of FBI agents’
hearsay testimony that he was involved in organized crime. Id. at 1061–62. The Eighth
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Circuit noted that the agents’ testimony was “hearsay upon hearsay upon hearsay,” id. at
1062, because the agents learned the information from informants who in turn had
received it from other sources, see id. at 1061. Given the distance between the agents and
the source of the information, the court deemed the testimony unreliable. Id. at 1062. In
this case, by contrast, Rago spoke directly to the eyewitnesses, each of whom told Rago
the shooter’s first name was “Aki,” and had the nephew sign a sworn statement and
photograph identifying Jones, whom he had seen frequently in the neighborhood, as the
shooter.
Jones makes several other arguments as to why Rago’s testimony was unreliable.
He notes that the testimony contained hearsay statements from witnesses whose names
Rago could not remember. He also observes that Rago testified about events occurring
nearly four years before his court appearance, and that Rago, the Government, and the
defense were unable to review the entire investigation file because it had been lost by the
Philadelphia Police Department. These arguments certainly go to the weight of the
evidence, but we cannot say that the District Court committed clear error by crediting
Rago’s testimony despite the flaws that Jones points out. The standard is whether the
evidence has “sufficient indicia of reliability”—a liberal standard that was satisfied in this
case.
III
For the reasons stated, we will affirm the District Court’s judgment of sentence.
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