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UNITED STATES v. BETHEA

December 20, 1992

UNITED STATES OF AMERICA,
v.
IRVING BETHEA, Defendant.



The opinion of the court was delivered by: HAROLD A. ACKERMAN

 SENTENCE

 Newark, New Jersey

 December 20, 1992

 BEFORE: THE HONORABLE HAROLD A. ACKERMAN, U.S.D.J.

 On June 16, 1989, Mutah Sessoms was brutally murdered.

 Mr. Irvin Bethea, now before the Court for sentencing, was one of those individuals. The grand jury charged Mr. Bethea with the following counts of the indictment:

 Count 1: A conspiracy to conduct from March 1, 1987 until January 1, 1990 an enterprise through racketeering;

 Count 2: Numerous acts of racketeering from March 1, 1987 until January 1, 1990;

 Count 4: Conspiracy to possess with intent to distribute more than five kilograms of cocaine from March 1, 1987 until January 1, 1990;

 Count 6: Possession with intent to distribute three kilograms of cocaine on or about November 25, 1988.

 Count 2 of the indictment charged Mr. Bethea with three distinct predicate acts. One of these acts, Act 3, was the murder of Mutah Sessoms.

 On May 13, 1992 the jury returned a verdict against Mr. Bethea and others. Irvin Bethea was convicted on all the counts he was charged with. However, a hung jury was declared on Act 3 of Count 2 of the indictment. In other words, Mr. Bethea was neither found guilty nor acquitted of the murder of Mutah Sessoms. Rather, the jury was deadlocked on whether the government had proven, beyond a reasonable doubt, that Mr. Bethea was responsible for Mr. Sessoms' murder.

 Subsequent to the conviction of Mr. Bethea, Mr. Thomas Larson, who is a probation officer associated with our probation office, prepared a presentence report in accordance with Federal Rule of Criminal Procedure 32(c). The offense level was calculated based on the predicate racketeering acts for which Mr. Bethea was convicted, namely conspiracy with intent to distribute cocaine and possession with intent to distribute in excess of five kilograms of cocaine. The exposure for such an offense level, as he described in his presentence report, time wise was 324 to 405 months of imprisonment.

 This matter now comes before the Court, as I indicated previously, on the government's objection to the probation department's computation of Mr. Bethea's total offense level. Specifically, the government contends that Mr. Bethea's role in the murder of Mutah Sessoms was proven at trial by a preponderance of the evidence and that, therefore, the murder should be taken into account in computing the total offense level under the guidelines.

 If the murder is taken into account the government argues that the total offense level would be calculated at level 43. And, as I've already indicated, since the offense level of 43 mandates that a sentence of life imprisonment be imposed, the government calls for the Court to sentence Mr. Bethea to life in prison.

 To analyze the government's argument I must address three issues: (1) whether the guidelines for violation of RICO permits the court to take into account acts with which the defendant was charged but not convicted; (2), if so, whether the act of murdering Mutah Sessoms constitutes "relevant conduct" under the guidelines that may be taken into consideration; (3), if so, whether the government has proven under the relevant evidentiary standard that Mr. Bethea murdered Mutah Sessoms.

 I shall address these issues in turn.

 The sentence range in this case is governed by the Sentencing Reform Act of 1984 which authorizes the United States Sentencing Commission to propagate sentencing guidelines. These guidelines mandate the judge to sentence a defendant in accordance with a calculation of the defendant's total "offense level."

 Since Irvin Bethea was convicted of violating RICO I must look to the sentencing guideline that addresses a conviction under RICO.

 Chapter Two, Section 2E1.1 provides that the relevant guideline for "unlawful conduct related to Racketeering Influenced and Corrupt Organizations," as follows:

 "(a) Base Offense Level (Apply the greater):

 
(1) 19; or
 
(2) The offense level applicable to the underlying racketeering activity."

 Thus, this Section requires the Court to cross reference the guideline range for other underlying offenses.

 Section 1B1.3 addresses guidelines that involve cross references. It specifically provides that cross references in Chapter Two shall be determined on the basis of:

 
"(1) all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense."

 This language states that in computing the base offense level when a defendant is convicted of violating RICO the court should not distinguish between underlying offenses for which the defendant was convicted and underlying offenses for which the defendant was not convicted. Rather, the language reads that in his or her role as fact finder at the sentencing the judge may compute the sentence based on any underlying offense which the court finds under the appropriate standard that the government has proven.

 A very recent Seventh Circuit case supports this interpretation. In United States v. Masters, 978 F.2d 281 (1992), the defendant was convicted of a number of racketeering activities, including soliciting the murder of his wife. The district judge calculated the sentence by using the guideline for murder even though the jury declined to answer a special interrogatory asking about the murder.

 In reviewing the district court's findings the court of appeals stated:

 
"Section 2E1(a)(2) . . . speaks of the underlying activity and not an underlying conviction . . . Section 1B1.3(a)(iii) says that 'cross references in Chapter Two . . . shall be determined on the basis of the following: (1) all acts and omissions committed and aided or abetted by the defendant . . . that occurred during the commission of the offense of conviction.' The murder . . . occurred during the racketeering conspiracy. So sec. 2E1(a)(2), read from the perspective of sec. 1B1.3(a), directs the court to the murder guideline rather than the solicitation guideline. At least it does this if the court's finding that [the defendant] is responsible for [the murder] is sustainable, and the process is otherwise consistent with the Constitution."

 See Masters at 4.

 The court held that "real-offense principles influence not only the aggravating and mitigating factors but also the definition of ...


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