FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE. [Hon. John A. Woodcock, Jr., U.S. District Judge].
Alan Feldman, with whom Feldman and Feldman was on brief, for
D. McGaughey, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief,
Thompson and Kayatta, Circuit Judges, and
Mastroianni,[*] District Judge.
KAYATTA, Circuit Judge.
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
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. 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
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.
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.).
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.
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, 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
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.
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
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
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.
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
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.
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.
Jury Instructions for Aiding and Abetting a Felon's
Possession of a Firearm
Standard of Review
review de novo Darlene's preserved argument that the
instructions omitted or materially altered the elements of an