United States District Court, D. Maine
SENTENCING ORDER ON DRUG QUANTITY
JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
Addressing objections to the calculation of drug quantity in this marijuana conspiracy, the Court concludes that the most accurate methodology is to correlate the amount of Pro-Mix, a fertilizer the conspiracy obtained in large amounts, to the amount of marijuana produced by the conspiracy. Using this methodology and evaluating the trial evidence, the Court assesses each individual defendant’s personal responsibility for drug quantity under the United States Sentencing Guidelines.
A. Procedural History
On January 24, 2014, a federal jury found Malcolm French, Rodney Russell, and Kendall Chase guilty of several federal crimes involving a conspiracy to manufacture and a conspiracy to distribute marijuana. Jury Verdict Form (ECF No. 311); Superseding Indictment (ECF No. 187). The Probation Office (PO) prepared and revised Presentence Investigation Reports on each Defendant. French PSR; Russell PSR; Chase PSR. In making its sentencing guideline calculations, the PO recommended drug quantities for each Defendant. French PSR ¶ 29 (1, 086.3 kilograms of marijuana); Russell PSR ¶ 29 (930.3 kilograms of marijuana); Chase PSR ¶ 30 (1, 086.3 kilograms of marijuana). Each Defendant objected to drug quantity calculation. French PSR, Obj. 1; Russell PSR, Obj. 16; Chase PSR, Obj. 6.
On June 2, 2015, the Government filed a sentencing memorandum addressing drug quantity. Gov’t’s Consolidated Mem. in Aid of Sentencing at 1, 3-6 (ECF No. 519) (Gov’t’s Mem.). On July 30, 2015, July 31, 2015, and August 6, 2015, the Defendants filed responsive memoranda. Def.’s Mem. in Aid of Sentencing (ECF No. 550); Def.’s Corrected Mem. in Aid of Sentencing at 10 (ECF No. 553) (Chase Mem.); Def. Malcolm French’s Mem. in Aid of Sentencing at 2-6 (ECF No. 551) (French Mem.); Def. Rodney Russell’s Sentencing Mem. at 5-6 (ECF No. 562) (Russell Mem.). On August 12, 2015, the Government filed a reply memorandum addressing drug quantity. Gov’t’s Consolidated Reply Mem. in Aid of Sentencing at 1-6 (ECF No. 571) (Gov’t’s Reply).
On February 3, 2016, Malcolm French filed another sentencing memorandum that-among other things-addressed drug quantity. Def. Malcolm French’s Suppl. Sentencing Mem. at 1-5 (ECF No. 608) (French Suppl. Mem.). On February 5, 2016, the Government filed another sentencing memorandum also addressing drug quantity. Gov’t’s Mem. in Aid of Sentencing at 1-2 (ECF No. 612) (Gov’t’s Suppl. Mem.). On March 9, 2016, the Government filed a further sentencing memorandum, again addressing drug quantity in part. Gov’t’s Mem. in Aid of Sentencing at 2-8 (ECF No. 631) (Gov’t’s Second Suppl. Mem.). Finally, on March 18, 2016, Mr. French filed a second supplemental memorandum addressing drug quantity. Def. Malcolm French’s Second Suppl. Sentencing Mem. at 1-7 (ECF No. 635) (French’s Second Suppl. Mem.).
B. Brief Background
In 2009, a number of law enforcement agencies investigated allegations that there were marijuana grow operations located in Township 37, Washington County, Maine on land owned by Haynes Timberland, Inc. (Haynes Timberland) and in the town of LaGrange, Maine on land owned by Malcolm French. Malcolm French, a Co-Defendant, was a co-owner of Haynes Timberland. Partial Tr. of Proceedings, Test. of: Malcolm French 106:12-22 (ECF No. 362) (French Test.). Haynes Timberland owned approximately 22, 000 acres in Township 37. French PSR ¶ 6. Mr. French and his wife, Barbara, jointly owned another parcel of land in Township 31 also in Washington County, Maine, where a warehouse was located. Id. ¶ 9; see Final Order of Forfeiture (ECF No. 621) (Final Forfeiture). Finally, Mr. French owned a hunting camp in LaGrange, Maine where a marijuana grow site had been located. French PSR ¶ 2; Final Forfeiture at 2 (ECF No. 2).
C. The Jury Verdict and Drug Quantity
The jury made several findings on drug quantity. See Jury Verdict Form (ECF No. 311). Regarding Count One, the conspiracy to manufacture 1, 000 or more marijuana plants count, the jury found that Mr. French, Mr. Russell, and Mr. Chase had engaged in a conspiracy to manufacture marijuana and that the conspiracy involved 1, 000 or more marijuana plants. Id. at 1-2. Regarding Count Two, the manufacture of 1, 000 or more marijuana plants count, the jury found Mr. French and Mr. Russell, but not Mr. Chase, guilty of manufacturing 1, 000 or more marijuana plants. Id. at 3-4. Finally, regarding Count Eleven, the conspiracy to distribute and to possess with the intention to distribute count, the jury found Mr. French, Mr. Russell, and Mr. Chase guilty of a conspiracy to possess with the intent to distribute marijuana, but made no drug quantity finding on this count. Id. at 6-7.
D. The Impact of the Jury Findings on Drug Quantity
For Mr. French and Mr. Russell, the statutory minimum term of imprisonment on Counts One and Two is ten years and the maximum is life, 21 U.S.C. § 841(b)(1)(A), and the statutory maximum term of imprisonment on Count Eleven is twenty years. 21 U.S.C. § 841(b)(1)(C). For Mr. Chase, the maximum term of imprisonment is twenty years; he does not face a mandatory statutory minimum term of incarceration. Id.
E. The PSR’s Drug Quantity Calculations
When law enforcement searched Township 37 in September 2009, they seized 2, 943 live marijuana plants. French PSR ¶ 8.
To calculate the total drug quantity attributable to each Defendant, the PO used as a proxy the quantity of Pro-Mix, a potting soil that the French conspiracy used to fertilize the marijuana plants. Id. ¶ 26. The evidence revealed that Mr. French and others purchased Pro-Mix from Griffin Greenhouse in Gray, Maine. Id. ¶ 23. The total number of Pro-Mix bags that Griffin Greenhouse supplied Cold Stream Contracting, one of Mr. French’s businesses, was 4, 590 from March 24, 2006 through February 13, 2009. Id. ¶ 24. The French conspiracy planted marijuana in oval or egg-shaped baskets constructed from rabbit or chicken wire, wrapped in weed-prevention cloth, and filled with soil. Id. ¶ 13. Noting that witnesses testified that they used between one-half a bag and one and one-half a bag of Pro-Mix for each basket and that between three and six plants were placed into each basket, the PO took a conservative approach. Id. ¶ 26. It used one and one-half bags and three plants per basket. Id.
Based on this methodology, the PO calculation was basic math: 3, 960 Pro-Mix bags were purchased from 2006 through 2008; using one and one half bags per basket, the number of baskets was 2, 640; using three plants per basket, the total number of marijuana plants equaled 7, 920 marijuana plants from 2006 through 2008. Id. Adding the number of marijuana plants found in 2009, the PO calculated the total number of marijuana plants attributable to the French conspiracy to equal 10, 863. Id. ¶ 27-28. Applying 100 grams per plant, the PO calculated a total drug quantity of 1, 086.3 kilograms for both Mr. French and Mr. Chase, id. ¶ 28, and a base offense level of 30, between 1, 000 and 3, 000 kilograms. Id. ¶ 28.
As the PO concluded that Mr. Russell did not arrive into the conspiracy before 2007, his drug quantity was slightly lower. The PO calculated the total number of plants from 2007 through 2008 to equal 6, 360. Russell PSR ¶ 26. The total kilograms was 930.3, which falls between 700 and 1, 000 kilograms, for a base offense level of 28. Id. ¶ 36.
II. THE PARTIES’ POSITIONS
A. The Government’s Initial Memorandum
In its initial memorandum, the Government essentially filled in additional background information justifying the PO’s approach. Gov’t’s Mem. at 3-6. In support of the calculation, the Government cited trial testimony and exhibits. Id.
B. Chase Memorandum
In his memorandum, Mr. Chase states that he “vigorously objects” to the PO’s drug quantity calculation, indicating that Mr. French would be filing a more detailed objection. Chase Mem. at 10. Specifically, however, Mr. Chase argues that “[i]t is wrong to conclude that each and every marijuana plant grown reached a grow potential of 100 grams.” Id. He says that there are “many environmental factors” for any agricultural venture, including “the amount of precipitation, pests, animals, and mold” that can “all have a negative impact.” Id.
Mr. Chase also argues that even though the jury determined that he was involved in the growing of marijuana, he should not be held responsible for “the entire drug amount.” Id. He explains that “[i]f a father teaches his son to hunt, and the son later engages in poaching, surely the father would not be held responsible for the poaching.” Id. He argues that similarly, “if Mr. Chase assisted or taught others how to grow plants, he should not be held responsible for all future plants.” Id.
C. Initial French Memorandum
Mr. French challenged the PO calculation in several ways. First, he disputes the premise that Pro-Mix bags are an appropriate proxy for the amount of marijuana. French Mem. at 2-3. He argues that there is “no direct correlation between bags of Pro-Mix and plants cultivated and no witness has testified on this score.” Id. at 3. He observes that the PO’s resort to bags of Pro-Mix “is a frank recognition of the troubling lack of evidence of any financial proceeds from the marijuana cultivation despite over four years of investigation including forensic auditing by the Internal Revenue Service.” Id. He also notes that another method for calculating drug quantity would be drug sales, but only one witness, Fai Littman, testified about purchasing marijuana from the French conspiracy. Id. at 3.
Mr. French criticizes the use of Pro-Mix on the following bases. First, he objects to the assumption that “each and every bag of Pro-Mix ordered from Griffin Greenhouses must have been used to cultivate marijuana.” Id. He notes that there was testimony from Miguel Roblero that he painted the white Pro-Mix bags green and took them to the grow site, but no green bags were found at Township 37. Id. at 4.
Next, Mr. French challenges the use of the 100 grams per plant ratio as inaccurate because it improperly applies the ratio to hypothetical plants, not actually existing ones. Id. at 5. On this point, he says that the cases of United States v. Stevens, 25 F.3d 318 (6th Cir. 1994) and United States v. Blume, 967 F.2d 45 (2d Cir. 1992) stand for the proposition that the 100 gram per plant ratio may be applied only to actual marijuana plants and not for hypothetical plants. Id.
He concedes that the Government is entitled to use the 100 gram ratio to the 2, 943 live marijuana plants found in Township 37 in September 2009, but he maintains that the use of the 100 gram ratio to hypothetical plants “applies a grossly unrealistic drug quantity to French’s sentencing analysis.” Id. Indeed, he said that he is “prepared to show that significantly lesser marijuana was produced in 2009 and 2008 than the Government claims.” Id. (footnote omitted).
D. Russell Memorandum
In his initial memorandum, Mr. Russell adopted Mr. French’s drug quantity arguments. Russell Mem. at 6. Mr. Russell also incorporates several of the specific objections to the drug quantity calculation that appeared in his PSR. Id. Those objections included: (1) that the bags of Pro-Mix that were purchased in 2007 were for associates of Winston McTague, known as the “Red Patch”; (2) that Mr. McTague’s testimony demonstrates that Mr. Russell was not present in 2007 and so the drug quantify for that year should be removed; and (3) that there was a discrepancy between the number of Pro-Mix bags Mr. Roblero said were delivered and the number of Pro-Mix bags found at Township 37 during the September 2009 search. Russell PSR, Obj. 16. Also, he contends that the better method of calculating drug quantity would be to confine the analysis to actual marijuana sales, which is limited to the amounts Fai Littman testified about. Id. He contends he should be held accountable for only the 2, 943 plants found on the day of the police raid. Id.
E. The Government’s Reply
The Government replied first to the Mr. French’s argument about the absence of green Pro-Mix bags at Township 37 in September 2009. Gov’t’s Reply at 1. The Government observes that Mr. Roblero testified that they had painted only five or six pallets of Pro-Mix and that they only painted the four sides of the pallets. Id. at 3. In addition, however, the Government notes that other witnesses testified about making multiple deliveries of Pro-Mix to the Township 31 site, and there is no evidence that the Pro-Mix bags in these other deliveries were painted green. Id. at 3-4.
The Government disagrees with Mr. French’s reliance on the Stevens and Blume cases. Id. at 5. Citing other caselaw, the Government says that the majority of circuits has held that “the equivalency calculation applies to all offenses involving the growing of marijuana, ...