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Dismiss for Racial Bias

Dismiss for Racial Bias

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Published by David Oscar Markus

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Published by: David Oscar Markus on Jan 14, 2011
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10/05/2012

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDAMIAMI DIVISIONCASE NO. 10-20844-CR-GrahamUNITED STATES OF AMERICA,Plaintiff,vs.TOM MAURICE JONES,Defendant. _____________________________________/MOTION TO DISMISS INDICTMENT
Mr. Jones, through counsel and pursuant to Federal Rule of Criminal Procedure 12(b)(3),moves to dismiss the indictment in this case on the grounds of selective prosecution, and in supportstates:
Background
1.On December 19, 2009, at approximately 4 a.m., the City of Miami PoliceDepartment received a 911 call from the victim of a car burglary. The caller identified the suspectas a skinny 60-year-old black man who was sitting on the ground near the corner of Northeast 13thStreet and Northeast First Avenue in Miami. The caller noted that the suspect appeared to be a“crackhead” with a white shopping bag and was wearing a black shirt and jeans.2.Based on this description from dispatch, Officer Guzman of the City of Miami PoliceDepartment decided to pursue Mr. Jones, a 28-year-old black man wearing an orange t-shirt and
Case 1:10-cr-20844-DLG Document 22 Entered on FLSD Docket 01/04/2011 Page 1 of 7
 
riding a bicycle on North Miami Avenue. According to Officer Guzman, when he asked Mr. Jonesto stop, Mr. Jones sped off on his bicycle. After a short pursuit, during which Mr. Jones allegedlytook a firearm from his waistband and threw it underneath a parked car, Mr. Jones was arrested.3.On January 20, 2010, the State Attorney for Miami-Dade County filed an informationcharging Mr. Jones with loitering and prowling, resisting arrest without violence, carrying aconcealed firearm, and 12 counts of possession of ammunition by a convicted felon, all in violationof Florida law. On that day, Mr. Jones was offered a plea agreement wherein he would plead guiltyto all charges and serve 39 months imprisonment. Mr. Jones rejected that offer and indicated that hewished to proceed to trial.4.Over the next ten months, this case was actively litigated in State Court (Case No.F-09-040846). Mr. Jones’ court-appointed attorney conducted depositions of all police officersinvolved in the arrest, and filed a motion to suppress evidence on his behalf. As the docket reflects,
1
Mr. Jones’ case was originally set for trial on June 1, 2010, but was continued twice by the court.On November 4, 2010, Mr. Jones reaffirmed his intention to proceed to trial during the trial period beginning on November 15, 2010. The state court scheduled a hearing for November 19, 2010, toresolve Mr. Jones’ motion to suppress, but that same day the US Attorney’s Office for this Districtobtained an indictment charging Mr. Jones with possessing a firearm as a convicted felon, inviolation of 18 U.S.C. § 922(g). Accordingly, the State Attorney dismissed all pending chargesagainst Mr. Jones in order to allow the federal government to prosecute him for the very sameconduct.5.The demographic breakdown of federal felon-in-possession prosecutions in Miamireveals an alarming racial disparity. Since the start of 2009, the Miami Division of the Federal PublicThe State Court docket can be accessed at
1
Case 1:10-cr-20844-DLG Document 22 Entered on FLSD Docket 01/04/2011 Page 2 of 7
 
Defender’s Office has handled 77 cases in which the defendant was charged with violating 18 U.S.C.§ 922(g)(1). 91% of those defendants were black (70 out of 77). By contrast, in the last year, thePublic Defender’s Office for Miami-Dade County has handled 5,692 cases in which the defendantwas charged with violating Fla. Stat. § 790.23(1), which similarly proscribes possession of a firearm by a convicted felon. 77% of those defendants were black (4410 out of 5692;
 see
Exhibit A).Moreover, according to the Department of Justice Bureau of Justice Statistics, in 2006 (the mostrecent year for which data is available), just 49% of felony defendants in Miami-Dade County were black (
 see
Exhibit B, at page 36).
2
Memorandum
“A defendant seeking to establish impermissibly selective vindictive prosecution must meeta substantial burden. He must show both that (i) others who have committed the same acts have not been prosecuted, and (ii) that the reason he was prosecuted was a ‘constitutionally impermissiblemotive such as racial [] discrimination or retaliation for his exercise of constitutional rights’.”
United States v. Lamberti
, 847 F.2d 1531, 1535 (11th Cir. 1988) (quoting
Owen v. Wainwright 
, 806 F.2d1519, 1523 (11th Cir. 1986)). Mr. Jones must demonstrate each of these elements by clear andconvincing evidence.
See United States v. Smith
, 231 F.3d 800, 808 (11th Cir. 2000). Mr. Jonesseeks dismissal of the indictment on two independent grounds: (1) his federal prosecution is inretaliation for his exercise of his right to trial; and (2) the US Attorney’s policy for § 922(g) prosecutions is impermissibly motivated by race.According to the US Census Bureau, Miami-Dade County is 19.5% African-American.
See
2
http://quickfacts.census.gov/qfd/states/12/12086.html.
Case 1:10-cr-20844-DLG Document 22 Entered on FLSD Docket 01/04/2011 Page 3 of 7

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