United States District Court, D. Maine
SENTENCING ORDER ON FIREARMS ENHANCMENT
JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE.
The Court declines to apply the two-level weapons enhancement under United States Sentencing Guideline § 2D1.1(b)(1) to co-conspirators in a marijuana operation because the evidence is too equivocal to find it is more likely than not that the Defendants actually knew, or that it was reasonably foreseeable, that a co-conspirator would possess a firearm in connection with the conspiracy.
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 included a two-level enhancement under United States Sentencing Guideline (USSG) § 2D1.1(b)(1) for possession of a dangerous weapon. French PSR ¶ 37, Russell PSR ¶ 37, Chase PSR ¶ 37. Each Defendant objected to the firearms enhancement. French PSR, Obj. 2, Russell PSR, Obj. 18; Chase PSR, Obj. 6.
On June 2, 2015, the Government filed a sentencing memorandum addressing the firearms enhancement. Gov’t’s Consolidated Mem. in Aid of Sentencing (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 (ECF No. 553) (Chase Mem.); Def. Malcolm French’s Mem. in Aid of Sentencing (ECF No. 551) (French Mem.); Def. Rodney Russell’s Sentencing Mem. (ECF No. 562) (Russell Mem.). On August 12, 2015, the Government filed a reply memorandum but did not address the firearms enhancement. Gov’t’s Consolidated Reply Mem. in Aid of Sentencing (ECF No. 571) (Gov’t’s Reply).
On February 3, 2016, Malcolm French filed another sentencing memorandum that-among other things-addressed the firearms enhancement. Def. Malcolm French’s Suppl. Sentencing Mem. (ECF No. 608) (French Suppl. Mem.). On February 5, 2016, the Government filed another sentencing memorandum also addressing the firearms enhancement. Gov’t’s Mem. in Aid of Sentencing (ECF No. 612) (Gov’t’s Suppl. Mem.). Finally, on March 18, 2016, Mr. French filed a second supplemental memorandum but mentions the firearm enhancement only in passing. Def. Malcolm French’s Second Suppl. Sentencing Mem. at 11 (ECF No. 635).
B. Brief Background
In 2009, a number of law enforcement agencies investigated an allegation that there was a substantial marijuana grow operation located in Township 37, Washington County, Maine on land owned by Haynes Timberland, Inc. (Haynes Timberland). 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, and 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). Mr. French referred to this warehouse as “Colson Field.” French Test. 43:16-44:3.
The investigation revealed that there were four major actors in the conspiracy, the three Defendants, and a man named Scott MacPherson, who tragically committed suicide in 2011. French PSR ¶ 10. Mr. French, who was a very successful businessman, was “in charge” and the overall leader of the marijuana conspiracy. Id. Kendall Chase contributed to the conspiracy through his knowledge about how to manufacture and harvest high quality marijuana. Id. In late 2006, Rodney Russell joined the conspiracy and became involved in the marijuana grow on a daily basis. Id. Mr. Russell and Mr. MacPherson monitored and supervised the migrant workforce. Id.
Mr. French came up with the idea of hiring migrant laborers to work on the marijuana operation. Id. As opposed to local residents, Mr. French thought illegal workers posed less risk and would be cheaper because: (1) he could pay them less, (2) they would be less likely to steal the marijuana, (3) they would be reluctant to contact local law enforcement, and (4) they would be unable to geographically locate the grow in a large and unfamiliar tract of land. Id. In late 2007, Mr. French engaged Moises Soto, a United States citizen originally from Mexico fluent in English and Spanish, to recruit laborers for the marijuana grow operation. Id. ¶ 11. On September 21, 2009, law enforcement executed a search warrant at Township 37, and on September 22, 2009, they confirmed the existence of a marijuana grow operation on Haynes Timberland land. Id. ¶ 6.
C. Miguel Angel Roblero-Velasquez
The only witness who testified about the presence of a firearm in connection with the marijuana grow operation was a Mexican laborer named Miguel Angel Roblero Velasquez. The Court has focused on his testimony to determine whether the Government has sustained its burden of proof to demonstrate the applicability of the firearms enhancement.
Mr. Roblero testified at the jury trial on January 15-16, 2014. Partial Tr. of Proceedings, Test. of: Miguel Angel Roblero Velasquez (ECF No. 370) (Roblero 1/15/14); Partial Tr. of Proceedings, Test. of: Miguel Angel Roblero Velasquez (ECF No. 371) (Roblero 1/16/14). As of January 2014, Mr. Roblero was twenty-five years old and living with his fiancée and child in Harrisburg, Pennsylvania. Roblero 1/15/14 3:23-5:7; 24:15-25:4. Brought up in Chiapas, Mexico, Mr. Roblero was twenty years old when he first came to the United States from Monterrey, Mexico. Id. 4:8-19; 5:23-6:1. He paid $2, 000 to a “coyote, ” a person who helps sneak immigrants across the United States-Mexico border. Id. 6:9-7:1. Mr. Roblero entered Texas and found his way to Florida. Id. 7:10-16. Mr. Roblero worked in Florida and in North Carolina. Id. 7:23-8:3. While working in North Carolina, Mr. Roblero met Abner Efran Perez Morales, who had grown up in the same area of Mexico as Mr. Roblero. Id. 8:11-21. They both traveled back to Florida where they continued working. Id. 8:25-9:6. It was in Florida that Mr. Roblero learned about a job planting pine trees in Maine. Id. 9:7-12.
Both Mr. Roblero and Mr. Perez were interested in working in Maine, and two people transported them to Maine, dropping them off at a gas station. Id. 10:1-6. At the gas station, they were met by Mr. Soto. Id. 10:7-11. Mr. Soto informed them that they were there to plant and cut marijuana. Id. 10:19-23. Mr. Soto took Mr. Roblero and Mr. Perez to a warehouse; shown a photograph of Mr. French’s warehouse in Township 31, Mr. Roblero identified it as the warehouse where the migrant laborers stayed and worked. Id. 11:3-19; 17:2-6.
Mr. Soto introduced Mr. Roblero and Mr. Perez to Scott, the man who lived at the warehouse. Id. 11:20-12:1. This was Scott McPherson. French Test. 43:12-44:3. Over time, Mr. Roblero met “Malcolm, Rod, Kevin, Kendall and Bobby.” Roblero 1/15/14 12:7-9. Mr. Roblero and Mr. Perez’s initial dealings were mostly with Mr. MacPherson and Mr. Soto. Id. 12:10-21. They were instructed by Mr. MacPherson through Mr. Soto to cut and clean dried marijuana plants. Id. 12:22-14:15. They worked ten to twelve hours per day in the warehouse with one other migrant laborer named Fernando. Id. 14:16-25. “Rod, ” presumably Rodney Russell, helped them clean the marijuana plants. Id. 15:1-4. After the marijuana was cleaned, Mr. Russell and Mr. MacPherson placed the marijuana in Ziploc baggies, weighed the bags on a scale, and stored the bags in metal boxes in Mr. MacPherson’s room. Id. 15:5-16:15.
Mr. Roblero together with the other migrant workers received their food from Mr. MacPherson. Id. 16:19-24. They were not allowed outside the warehouse and slept inside the warehouse. Id. 17:2-9. Mr. MacPherson covered over the warehouse windows, and the workers were not able to look outside. Id. 17:7-20. Mr. Soto paid the workers a weekly cash salary of $380 to $400. Id. 17:21-18:3. Mr. MacPherson gave Mr. Soto the cash to pay the workers. Id. 18:4-8. When Mr. Roblero was working with Mr. MacPherson and Mr. Russell, Mr. French, Mr. Kevin Chase, Mr. Kendall Chase, and Mr. Berg would come by. Id. 18:15-18. At one point, Mr. French, Mr. MacPherson, and Mr. Russell showed the workers a process to handle the discarded parts of the marijuana plants. Id. 18:25-20:14. Mr. Roblero worked in the warehouse for four months. Id. 20:15-17. At the end of the time in the warehouse, Mr. Roblero recalled Mr. Kevin Chase driving a tractor-trailer to the warehouse loaded with white bags of dirt or soil. Id. 22:20-23:10. The workers spray-painted the bags green, and Mr. MacPherson, Mr. French, Mr. Russell, Mr. Kevin Chase, and Mr. Kendall Chase took the bags into the woods. Id. 23:13-24:6.
Eventually, Mr. Roblero and the other migrant workers went to “the mountain” about forty minutes away from the warehouse. Id. 24:12-14; 26:9-13. Mr. French and Mr. MacPherson took the workers to the mountain by car. Id. 26:14-15. When they arrived, Mr. Roblero saw the soil packages that they had painted green. Id. 27:16-18. Mr. MacPherson taught Mr. Roblero, Mr. Perez, and Fernando how to make “nests” or “baskets” from wire, cloth, and the bagged soil. Id. 26:19-28:19. The migrant laborers were able to make fifty to sixty baskets per day. Id. 28:8-15. After they made the baskets, Mr. French and Mr. MacPherson took the laborers into the woods where the workers positioned the baskets, filled them with soil, and planted marijuana in them. Id. 28:24-29:10. The marijuana came from a greenhouse that Mr. MacPherson and Mr. Russell had built in the woods. Id. 29:11-20. While they were working in the woods, Mr. MacPherson provided camouflage clothing for the workers. Id. 30:3-13.
After the marijuana plants were planted in the nests, the workers tended them by cutting off the yellow leaves, watering them, and putting poison down to ward off pests. Id. 30:14-31:1. Mr. Russell and Mr. MacPherson showed the workers how to care for the marijuana plants. Id. 30:14-31:11. Mr. Chase put tags or stickers on the plants to indicate that they were ready to harvest. Id. 31:12-32:5. Mr. MacPherson and Mr. Russell would also label each plant with a plastic tag, stating the type of marijuana in the basket. Id. 33:24-34:25. The laborers worked ten to twelve hour days. Id. 35:1-3.
Mr. Roblero described the area of the marijuana grow in Township 37. He said there were three houses in the marijuana grow area: one for eating and washing up, one for sleeping, and a third for Mr. Russell and Mr. MacPherson to sleep. Id. 35:4-10; 37:22-24. He said that he was present when they brought the third building to the marijuana grow site and that Mr. French pulled in the building with the help of Mr. MacPherson and Mr. Russell. Id. 36:7-18. There was also a small house where the marijuana was placed to dry; Mr. MacPherson and Mr. Russell put the marijuana in that house for drying. Id. 43:12-44:7.
After that first season, Mr. Roblero returned to Mexico along with Mr. Soto’s brother-in-law. Id. 44:6-14. The next year, Mr. Roblero returned to the United States with Mr. Perez around April. Id. 44:22-45:4; 48:6-9. After an encounter with kidnappers in Texas from which Mr. Soto extracted them, Mr. Roblero and Mr. Perez returned to Maine with Mr. Soto to the same garage. Id. 45:25-48:11. He also returned to the mountain where the marijuana grow operation was located. Id. 48:12-13. The same Americans there the season before were present at the mountain. Id. 49:23-50:3. However, the Chase brothers, Kendall and Kevin, were seldom there, maybe once a week. Id. 50:4-6. Mr. Roblero understood that there had been a falling out among the Chase brothers and Mr. French. Id. 50:10-15.
In September, 2010, a plane flew over the grow site. Id. 65:25-66:2. Mr. French, Mr. MacPherson, and Mr. Russell were at the grow site that day. Id. 66:14- 18. The migrant laborers met up with Mr. French, Mr. MacPherson, and Mr. Russell, and after the three Americans talked, the laborers went with Mr. MacPherson and Mr. Russell, while Mr. French went off somewhere else on foot. Id. 66:23-67:13. Mr. MacPherson, Mr. Russell, and the migrant workers spent the night in the woods. Id. 67:18-23. Later, the group went to the warehouse, where they were picked up by Mr. Berg; Mr. Berg along with Mr. MacPherson drove the migrant laborers for two hours to Mr. Berg’s garage, where they stayed until later that day. Id. 68:21-71:24. Then Mr. Soto came and picked them up, and Mr. Roblero went to New York before ultimately ending up in Pennsylvania. Id. 71:23-72:21.
The only trial testimony that Mr. MacPherson had a firearm is found in the following exchange:
Q. And did Scott ever wear a gun or a firearm when you were with him?
A. He always had a pistol sometimes on his - - at his waist.
Q. Did he ever threaten you in any way?
A. No, it was just - - he would get angry, and we’d get scared because we didn’t know what he was saying. He would get angry. He would scare us because he’d get angry, and we didn’t know what was going on.
Roblero 1/16/14 42:12-19.
D. Scott MacPherson and Firearms
In addition to Mr. Roblero’s testimony, the Government introduced evidence that when law enforcement searched the Township 31 compound, including Mr. MacPherson’s residence, they found two pistols in a safe inside Mr. MacPherson’s living quarters. Gov’t’s Mem. at 7 (citing Sentencing Ex. List Ex. 1 (ECF No. 520) (Sentencing)). In addition, they note that law enforcement found guns when they executed the search warrant at the French residence. Id. (citing Sentencing Ex. 2). The Government introduced into evidence for sentencing purposes a photograph of the safe and the two pistols as well as a number of long rifles located at Mr. French’s residence. See Sentencing Exs. 1-2. The Government also presented a deputy sheriff’s report of Mr. MacPherson’s suicide. Id. Ex. 3. On February 11, 2011, Mr. MacPherson’s body was found in a pickup truck at the compound; there was a loaded .357 Taurus revolver between his legs and a bullet hole in his head. Id.
II. THE PARTIES’ POSITIONS
A. The Government’s Initial Memorandum
The Government says that “[t]o warrant the enhancement the presence of the weapon must have been known to, or reasonably foreseeable to, the defendant.” Gov’t’s Mem. at 6 (quoting United States v. Quinones-Medina, 553 F.3d 19, 23 (1st Cir. 2009). According to the Government, it has “long been settled in this Circuit that ‘firearms are common tools of the drug trade.’” Id. (quoting United States v. Bianco, 922 F.2d 910, 912 (1st Cir. 1991)). The Government notes that under First Circuit law, “absent evidence of exceptional circumstances, we think it fairly inferable that a codefendant’s possession of a dangerous weapon is foreseeable to a defendant with reason to believe that their collaborative criminal venture includes an exchange of controlled substances for a large amount of cash.” Id. at 6-7 (quoting Bianco, 922 F.2d at 912). With this background, the ...