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United States v. Ford

United States Court of Appeals, First Circuit

April 13, 2016

UNITED STATES OF AMERICA, Appellee,
v.
DARLENE FORD, Defendant, Appellant

Page 64

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. [Hon. John A. Woodcock, Jr., U.S. District Judge].

         Steven Alan Feldman, with whom Feldman and Feldman was on brief, for appellant.

         Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

         Before Thompson and Kayatta, Circuit Judges, and Mastroianni,[*] District Judge.

          OPINION

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          KAYATTA, Circuit Judge.

          The four members of the Ford family ran an illicit, indoor marijuana farm, for which they have all been sentenced to prison. This appeal by Darlene Ford primarily concerns not the marijuana, but rather Darlene's semi automatic rifle, which she allowed her husband, James F. Ford, to use for target practice. James's possession of a firearm was a crime because he had previously been convicted of a criminal offense " punishable by imprisonment for a term exceeding one year." 18 U.S.C. § § 922(g)(1), 924(a)(2). Relying on the criminal code's general aiding and abetting provision, 18 U.S.C. § 2 (" section 2" ), the government indicted Darlene for, among other crimes, letting James possess the rifle. Over Darlene's objection, the trial court instructed the jury that it could convict Darlene if she " knew or had reason to know" that James had previously been convicted of a crime punishable by more than one year in prison. After the jury convicted her of the aiding and abetting charge, and also of conspiring in the family's illicit marijuana growing operation and of maintaining a drug-involved residence, Darlene appealed. In a case of first impression, we find that the jury should not have been allowed to convict Darlene of aiding and abetting James's unlawful possession of a firearm merely because she " had reason to know" that James had previously been convicted of a crime punishable by more than a year in prison. We otherwise reject Darlene's challenges to her conviction and sentence.

         I. Background

         Maine drug enforcement officers executed a warrant to search the Fords' home in Monroe, Maine, on November 15, 2011. In the home at the time were Darlene, her husband James, and their adult sons Jim and Paul.[1] The search uncovered evidence of a substantial indoor marijuana growing operation, including 211 marijuana plants and financial records consistent with a significant marijuana distribution business. The agents also found two dismantled semi-automatic rifles, various firearm parts, and a video of James holding and firing one of the rifles at a firing range as Darlene narrates.

         The United States subsequently indicted the four family members on various drug and firearms charges. Sons Paul and Jim pled guilty of, among other crimes, conspiring with their parents to manufacture 100 or more marijuana plants. They are serving prison sentences of 46 and 60 months, respectively. United States v. Ford, No. 14-1669, 625 Fed.Appx. 4, slip op. at 2 (1st Cir. Aug. 19, 2015) (unpublished) (Paul); United States v.

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Ford, No. 1:12-cr-00163-JAW-2 (D. Me. June 03, 2013), ECF No. 143 (Jim). After a jury trial, husband James was convicted of conspiring with his sons and wife to manufacture 100 or more marijuana plants; of manufacturing 100 or more marijuana plants; of maintaining drug-involved residences; and of being a felon in possession of a firearm. United States v. Ford, No. 1:12-cr-00163-JAW-1 (D. Me. Nov. 24, 2014), ECF No. 400. That conviction is the subject of a separate pending appeal before this court, United States v. Ford, No. 14-2245 (1st Cir.).

         Darlene was tried separately from her husband. Her first trial ended when the jury deadlocked. A second trial resulted in a jury verdict convicting Darlene of conspiring to manufacture 100 or more marijuana plants, in violation of 21 U.S.C. § § 841(a)(1) and 846; of maintaining a drug-involved residence, in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2; and of aiding and abetting a felon's possession of a firearm, in violation of 18 U.S.C. § § 2, 922(g)(1), and 924(a)(2). Darlene now appeals her conviction on the aiding and abetting count, plus her sentence: seventy-eight months in prison on each count, to run concurrently, followed by three years of supervised release on each count, also to run concurrently.

         Darlene concedes that she purchased two assault rifles found by agents at her Monroe home, and that James used one of the rifles at least once in her presence. In short, it is plain that she aided his possession of a firearm. Also not disputed is the government's proof that five to seven years before Darlene aided him in possessing the firearm,[2] James had been convicted in Massachusetts of three felonies punishable by more than one year in prison: possessing marijuana with intent to cultivate and distribute; possessing a firearm without proper identification; and possessing ammunition without proper identification. What was contested at trial on the aiding and abetting count was Darlene's knowledge of those convictions.

         The evidence to which the government points us on the details of James's 2004 convictions is skimpy. It does not reveal how many times James appeared at the courthouse, whether he ever served a day in custody, or what, if any, conditions or probationary restrictions were imposed on him as a result of the conviction. Nor does that evidence reflect any involvement by Darlene in any appearance, meeting, or communication concerning the 2004 prosecution.

         The government's evidence trained, instead, on the circumstances that gave rise to the 2004 charges. Massachusetts State Trooper James Bruce (" Bruce" ) testified that on October 11, 2002, he conducted searches at what were then the Fords' two residences in Wakefield, Massachusetts: 2 and 5 Fellsmere Avenue (" No. 2" and " No. 5," respectively). No. 2 was the voter registration address for Paul and Jim, and No. 5 was the voter registration address for Darlene and James. Bruce recalled substantial marijuana growing operations in both No. 2 and No. 5. He mentioned the " overpowering" smell of marijuana in both homes, the presence of marijuana plants in various stages of growth, and the discovery of other marijuana-related paraphernalia.

         While police were searching No. 2 in 2002, a car pulled up to No. 5, and Bruce saw " [a] man, a woman, and a younger man" emerge from the vehicle. The woman and the younger man walked into No. 5, while the older man, James, walked over

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to the officers at No. 2. Bruce testified that he " believed the woman to be" Darlene because he had seen her driver's license photograph prior to conducting the search. Darlene's counsel questioned Bruce's knowledge and whether he was certain in 2011 that the woman at the scene he observed in 2002 was Darlene.

         Darlene took the stand in her own defense. She testified that on October 11, 2002, she was at work from 12:00 to 9:00 PM and that she had never seen Trooper Bruce before the trial in this case. At the beginning of her direct examination, she said that she first heard about the search of her residence (No. 5) on the evening of the search. She then recanted, claiming that she did not learn about the search until nine years later, when the Maine prosecution began. She further claimed that she did not know that her husband had been arrested in 2002 in connection with the search, that she did not learn about his Massachusetts conviction until " this [Maine] case started unfolding," and that she therefore did not know at the time the video was taken that her husband had a prior conviction or was prohibited from possessing a firearm. Although she knew that she and her husband had transferred No. 2 to the Commonwealth of Massachusetts pursuant to a civil forfeiture, she claimed to have believed that the reason was to keep her son Paul out of jail, not because of any conviction or charges related to her husband.

         Closing arguments at Darlene's trial highlighted the parties' competing views of the state of mind the government needed to prove to convict Darlene of aiding and abetting James's crime. Defense counsel stressed that Darlene did not actually know about her husband's prior felony conviction, while the government emphasized the ample circumstantial evidence suggesting that Darlene " knew or had reason to know" about James's prior conviction.

         A good portion of the charge conference focused on the state of mind instruction for the aiding and abetting count. In relevant part, the government argued that it need only prove that Darlene " knew or had reason to know" that James had been convicted of a crime classified as a felony under federal law. Darlene's counsel objected to inclusion of the phrase " or had reason to know" in the jury instructions. After a recess for research, the trial court determined that there was no direct precedent on point in this circuit. It fairly noted, though, that decisions in other circuits seemed to support the government. Acknowledging that " we're sort of flying without guidance," the trial court accepted the government's position over objection, telling the jury that it needed to find that Darlene:

knew or had reason to know that James F. Ford had been convicted in any court of at least one crime classified as a felony under federal law; and, . . ., that Darlene Ford consciously shared James F. Ford's knowledge that he possessed one or more -- one or both of the firearms, intended to help him possess it, and took part in the endeavor, seeking to make it succeed. The government does not have to prove that James F. Ford or Darlene Ford knew their conduct was illegal.

         II. Analysis

         A. Jury Instructions for Aiding and Abetting a Felon's Possession of a Firearm

         1. Standard of Review

          We review de novo Darlene's preserved argument that the instructions omitted or materially altered the elements of an ...


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