United States District Court, D. Maine
SENTENCING ORDER IMPOSING OBSTRUCTION OF JUSTICE ENHANCEMENTS
JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
Opposing the recommended obstruction of justice enhancement, Malcolm French seeks to admit the results of a polygraph examination that concluded he told the truth when he testified at his trial. The Court rejects his request because the polygraph test would be more trouble than it is worth and because, having presided over the trial in this case, the Court has a firm conviction that both he and his co-defendant, Rodney Russell, willfully lied when they denied committing the crimes of which they were found guilty and willfully lied when they testified in contradiction of material testimony from other witnesses that the Court has concluded was true. At sentencing, the Court will apply the two-level obstruction of justice enhancement under United States Sentencing Guideline § 3C1.1 for Mr. French and Mr. Russell.
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) (Jury Verdict); Superseding Indictment (ECF No. 187). The Probation Office (PO) prepared and revised a Presentence Investigation Report (PSR) on each Defendant. French PSR; Russell PSR; Chase PSR. In making its sentencing guideline calculations, the PO recommended an obstruction of justice enhancement for Mr. French and Mr. Russell, French PSR ¶¶ 31, 32, 41, Russell PSR ¶¶ 31, 32, 41, but not for Mr. Chase. Mr. French and Mr. Russell objected to imposition of the enhancement. French PSR, Obj. 3; Russell PSR, Obj. 17.
On June 2, 2015, the Government filed a sentencing memorandum addressing the obstruction of justice enhancement. Gov’t’s Consolidated Mem. in Aid of Sentencing at 7-12 (ECF No. 519) (Gov’t’s Mem.). On July 30, 2015 and August 6, 2015, Mr. French and Mr. Russell filed responsive memoranda. Def. Malcolm French’s Mem. in Aid of Sentencing at 7-9 (ECF No. 551) (French Mem.); Def. Rodney Russell’s Sentencing Mem. at 1-3 (ECF No. 562) (Russell Mem.). On August 12, 2015, the Government filed a reply memorandum but did not address the obstruction of justice argument. Gov’t’s Consolidated Reply Mem. in Aid of Sentencing (ECF No. 571).
On February 3, 2016, Malcolm French filed another sentencing memorandum that challenged the obstruction of justice enhancement in part on the basis of the results of a polygraph examination. Def. Malcolm French’s Suppl. Sentencing Mem. at 7-12 (ECF No. 608) (French Suppl. Mem.). On February 5, 2016, the Government filed another sentencing memorandum addressing the obstruction of justice enhancement. Gov’t’s Mem. in Aid of Sentencing at 2-3 (ECF No. 612) (Gov’t’s Suppl. Mem.).
On February 8, 2016, Mr. French filed another sentencing memorandum, urging the Court to admit for sentencing purposes the results of his polygraph examination conducted by Mark Teceno on January 14, 2016, Def. Malcolm French’s Mem. of Support Admission of Polygraph Test Results for Sentencing Purposes (ECF No. 614) (French Polygraph Mem.), and on February 9, 2016, he filed a series of attachments. Order (ECF No. 615) (Order); id. Attach. 1 Decl. of Polygraph Expert Dr. David C. Raskin (Raskin Decl.); id. Attach. 2 Decl. of Mark Teceno (Teceno Decl.). On March 9, 2016, the Government filed another sentencing memorandum that addressed the issue of the polygraph examination. Gov’t’s Mem. in Aid of Sentencing (ECF No. 631) (Gov’t’s Second Suppl. Mem.). Finally, on March 18, 2016, Mr. French filed a second supplementary memorandum addressing drug quantity. Def. Malcolm French’s Second Suppl. Sentencing Mem. at 7-11 (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. 1/21/14); 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.
C. The Jury Verdicts
On January 24, 2014, the jury found Mr. French and Mr. Russell guilty of count one: engaging in a conspiracy to manufacture 1, 000 or more marijuana plants. Jury Verdict at 1-2. It found that the conduct of Mr. French and Mr. Russell in count one involved 1, 000 or more marijuana plants. Id. at 2. The jury found Mr. French and Mr. Russell guilty of count two: manufacturing 1, 000 or more marijuana plants and for each of them, his conduct involved 1, 000 or more marijuana plants. Id. at 3. It found that Mr. French and his corporation, Haynes Timberland, were guilty of count three: managing or controlling a drug involved premises. Id. at 4. It found Mr. French guilty of count four: managing or controlling a drug involved premises. Id. at 4-5. It found Mr. Russell guilty of counts five and six: using or controlling a drug involved premises. Id. at 5. The jury found Mr. French and Mr. Russell guilty of counts seven, eight, and nine: harboring illegal aliens Martin Roblero, Miguel Angel Roblero Velasquez, and Abner Perez Morales, respectively. Id. at 5-6. It found Mr. French and Mr. Russell guilty of count eleven: engaging in a conspiracy to distribute and possess with the intent to distribute marijuana. Id. at 6. After the verdicts on the criminal counts, the jury returned a forfeiture verdict against Mr. French’s ownership interest in Haynes Timberland and his interests in the lots in Township 31, LaGrange, and Township 37. Jury Forfeiture Verdict Form at 1-5 (ECF No. 312).
D. The Probation Office Recommendation
1. Malcolm French
The Probation Office (PO) noted that Mr. French testified at trial and denied that he was guilty of the crimes with which he had been charged and later convicted. French PSR ¶ 31. The PO concluded that some of his testimony was false: (1) the Red Patch motorcycle gang explanation for the 2005 marijuana grow in LaGrange, including the visit by Mike Smith and Mr. French’s reparations to the Red Patch in the form of Pro-Mix; (2) his hiring of migrant laborers for legitimate forestry work; (3) his denial of any knowledge that marijuana was being processed at the warehouse in Township 31; (4) his denial of sales to Fai Littman; (5) his denial of participating in the unloading of Pro-Mix; and (6) his denial of knowledge that Mr. Russell was ordering growing supplies through Griffin Greenhouse. Id.
2. Rodney Russell
The PO noted that Mr. Russell testified at trial and denied that he was guilty of the crimes with which he had been charged and later convicted. Russell PSR ¶ 31. The PO concluded that some of his testimony was false: (1) that he thought the Pro- Mix ordered in 2007 was going to be resold; (2) that he did not know Miguel Roblero; (3) that he knew nothing about migrant workers living in the Township 31 warehouse; (4) that Mr. French had hired migrant workers in 2008 to help with firewood; (5) that he had not been physically present at the Township 37 marijuana grow in 2008 and only went there after the police raid in 2009; (6) that he did not sell marijuana to Mr. Littman; and (7) that he did not know about where the cash came from to purchase supplies from Griffin Greenhouse. Id.
II. THE PARTIES’ POSITIONS
A. The Government’s Memorandum
In the its June 2, 2015 memorandum, the Government set forth seventeen specific instances in the trial testimony of Malcolm French where it contends Mr. French attempted to obstruct justice and twelve instances in the trial testimony of Rodney Russell where it contends Mr. Russell attempted to obstruct justice. Gov’t’s Mem. at 8-10. After setting forth the applicable law, the Government argues that because Mr. French and Mr. Russell “flatly denied having any involvement in or knowledge of the Township 37 marijuana grow, ” their testimony is not only “contradicted by the verdict” but is also “demonstrably false.” Id. at 12 (citation omitted).
B. Malcolm French’s Response
In his response, Mr. French concedes that his testimony was clear: “he had no involvement whatsoever in any of the cultivation of marijuana and the only role he had with the cultivation was his purchase of Pro-Mix and other items to pay off a debt to the true marijuana cultivators here-a gang with which Winston McTague was affiliated-and nothing more.” French Mem. at 7. Mr. French disagrees that the jury verdicts compel the conclusion that he was lying because in his view the jury did not have to choose “one version of what happened as opposed to another.” Id. at 7-8. He suggests that the jury could have found him guilty as an accomplice because he purchased items that were used in the cultivation of marijuana. Id. at 8. He argues that none of his statements was “untruthful on their face.” Id. Simply because Mr. French contradicted some of the Government’s witnesses does not mean, in his view, that he obstructed justice, particularly since the Government has a high burden to prove obstruction. Id. at 8-9 (citations omitted).
C. Rodney Russell’s Response
Rodney Russell echoes Mr. French’s arguments. Russell Mem. at 1-3. In particular, Mr. Russell disagrees with the Government’s assertion that he contradicted his own testimony by stating both that he did not recall saying anything about following Scott MacPherson’s orders and that if Mr. MacPherson asked him to write a check, he wrote a check. Id. Mr. Russell contends that these two statements are not necessarily contradictory, and in any event, they do not concern, in his view, a material fact. Id. at 2-3.
D. Malcolm French’s Supplemental Memorandum
In his February 3, 2016 supplementary memorandum, Mr. French introduced a new subject: he says he took and passed a polygraph examination by Mark Teceno, a polygraph examiner, which confirmed that it is “very highly likely” that he was telling the truth both during that test and at trial. French Suppl. Mem. at 1. Mr. French offers the results of the polygraph to “corroborate defendant’s trial testimony for sentencing purposes.” Id. (footnote omitted). Mr. French says that Mr. Teceno “asked three versions of the same fundamental question which is essence was: ‘did Mr. French perjure himself, or intentionally lie, at his trial?’ The answer was no, he did not.” Id. at 7.
Contrary to the Government’s contentions, Mr. French insists that his testimony about the Red Patch gang was “demonstrably true.” Id. He maintains that his testimony was corroborated by the grand jury testimony of Warden Bruce Loring. Id. According to Mr. French, Warden Loring testified that in January 2007, Mr. French told him that he had incurred debts to a group including Mike Smith when one of Mr. French’s workers destroyed marijuana valued at $35, 000 belonging to the gang. Id. Mr. French says that Warden Loring told the grand jury that Mr. French was afraid of Mr. Smith and his group and at one point appeared “on the verge of tears.” Id. Mr. French points out that his conversation with Warden Loring took place thirty months before the raid and seven years before the trial. Id. at 7-8. Mr. French then attacks the testimony of Moises Soto, Mr. Littman, Miguel Roblero, and Mr. McTague as incredible. Id. at 8-12. He argues that the Court should not accept the testimony of these “unreliable government witnesses” to sustain its burden of proof for the obstruction of justice enhancement. Id. at 8.
E. The Government’s Supplemental Response
In its supplemental response, the Government says that “[p]olygraph test[s] are generally viewed as unreliable for Court purposes.” Gov’t’s Suppl. Mem. at 2. The Government argues that “[f]our Government polygraphers have conducted quality control reviews of Mr. Teceno’s work and found flaws in how it was conducted.” Id. at 3. Moreover, the Government maintains that Mr. French “already underwent a lie detector test-his jury trial-and the results of that test prove beyond all reasonable doubt that he failed the test.” Id. It says that the “jury could not have conceivably accepted his testimony and returned verdicts of guilty on every count.” Id.
F. The Government’s Second Supplemental Sentencing Memorandum
In its second supplemental memorandum, the Government notes that it submitted two reports concerning quality control reviews of Mr. Teceno’s work conducted by four Government polygraphers and that these Government witnesses “identified several problems with the work of Mr. Teceno and expressed the unanimous view that in light of those problems they would not support a ‘no deception indicated’ decision.” Gov’t’s Second Suppl. Mem. at 9. The Government also reviewed caselaw concerning the admissibility of the results of polygraph testing at sentencing hearings. Id. at 10-14 (collecting cases). Even if the Court could accept the results of a polygraph examination for sentencing purposes, the Government urges the Court not to do so in this case because the testing of Mr. French was unreliable and the results would contradict the jury’s verdict. Id. at 14-18.
G. Malcolm French’s Second Supplemental Sentencing Memorandum
Responding to the Court’s inquiry, Mr. French provided caselaw in which courts have admitted polygraph evidence at sentencing proceedings. French Second Suppl. Mem. at 7-8 (collecting cases). Mr. French also defends Mr. Teceno’s test results by including the opinion of Dr. Charles Honts, a polygraph expert, that “none of the statements made by Mr. Teceno or Mr. French impact the validity or reliability of the test in any fashion.” Id. at 9. He also says that the issue of the “‘friendly polygraph examiner’ has been scientifically studied and the literature does not support such a theory and generally contradicts it.” Id. (citing Raskin Decl. at 25). Again contrary to the Government’s position, Mr. French argues that his trial testimony is not inconsistent with the verdict and his denial of involvement was consistent with his subjective belief. Id. at 9-11.
III. DISCUSSION: THE POLYGRAPH ISSUE
A. The Law
The most recent First Circuit discussion of the admissibility of polygraph evidence is found in United States v. Castro-Caicedo, 775 F.3d 93 (1st Cir. 2014). In Castro-Caicedo, the First Circuit reiterated its longstanding skepticism about polygraph test results. Id. at 102. It quoted from an earlier First Circuit case relied upon by the Defendant in the case before it:
This is the latest in a growing line of cases that ought to suggest, if not a per se rule, then at least a code of best practice for the virtuous prosecutor: polygraph evidence, even that dealing with matters other than the actual results of an examination, is usually more trouble than it is worth.
Castro-Caicedo, 775 F.3d at 102 (quoting United States v. Mare, 668 F.3d 35, 42 (1st Cir. 2012)). The Castro-Caicedo Court’s distrust of polygraph results is consistent with earlier First Circuit caselaw. In 2009, the First Circuit wrote that “[p]olygraph results are rarely admissible at trial.” United States v. Rodriguez-Berríos, 573 F.3d 55, 73 (1st Cir. 2009). Indeed, in Rodriguez-Berríos, the First Circuit found it “troubling that a polygraph test was mentioned in the presence of the jury.” Id. The Rodriquez-Berríos Court quoted a 1983 First Circuit opinion, deVries v. St. Paul Fire and Marine Insurance Co., 716 F.2d 939 (1st Cir. 1983), which reserved the question of “whether a per se prohibition against the use of lie detector tests is appropriate” but noted that “polygraph evidence has long been considered of dubious scientific value and hence has been deemed irrelevant by the federal courts.” Rodriguez-Berríos, 716 F.2d at 73 (quoting deVries, 716 F.2d at 944-45). Consistent with the First Circuit’s view, in United States v. Godin, 563 F.Supp.2d 299 (D. Me. 2008), the district court in Maine rejected a request for funds to hire a polygraph examiner for sentencing purposes, expressing concerns about “the reliability of polygraph examinations.” Godin 563 F.Supp.2d at 299-300 (citing United States v. Scheffer, 523 U.S. 303, 309 (1998); United States v. York, 357 F.3d 14, 23 (1st Cir. 2004)).
The First Circuit’s wariness contrasts with some circuits that have been friendlier toward admissibility. In the Eleventh Circuit, for example, polygraph evidence may be admitted in two contexts: (1) when the parties stipulate in advance to the test’s circumstances and scope of its admissibility, and (2) to impeach or corroborate the testimony of a witness at trial. United States v. Henderson, 409 F.3d 1293, 1301-02 (11th Cir. 2005) (citing United States v. Piccinonna, 885 F.2d 1529, 1535 (11th Cir. 1989) (en banc); United States v. Gilliard, 133 F.3d 809, 811-12 (11th Cir. 1998)); see also Mark S. Brodin, Joseph M. McLaughlin, Jack B. Weinstein & Margaret A. Berger, Weinstein’s Fed. Evidence, § 702.06[b] (2d ed. 2015) (discussing circuit positions). Even so, the Eleventh Circuit has affirmed a refusal to admit polygraph test results at trial. Henderson, 409 F.3d at 1301-02 (affirming trial court decision not to admit polygraph evidence under Rule of Evidence 702).
On February 9, 2016, Mr. French filed with the Court an opinion from the Middle District of Florida in United States v. Angulo-Mosquera, No. 8:14-cr-379-T-36TGW, (M.D. Fla. Apr. 9, 2015), in which the trial judge permitted polygraph evidence to be admitted at trial. Order. The case is noteworthy in part because the district judge was presented with the testimony of Dr. David C. Raskin, one of Mr. French’s experts, and she granted the Defendant’s motion to determine the admissibility of polygraph evidence through expert testimony under Federal Rule of Evidence 702. Id. at 9.
Although of interest, there are significant differences between Mr. Angulo-Mosquera’s trial and Mr. French’s sentencing hearing. First, the district judge in Florida applied binding precedent from the Eleventh Circuit, not the First Circuit, and she found that the defense had met the preconditions for admissibility in the Eleventh Circuit. Id. at 5. Second, although Dr. Raskin testified in favor of the scientific reliability of polygraph testing, the Government did not present any evidence or testimony at the Daubert hearing in Angulo-Mosquera to contradict his testimony. Id. at 7-8. Here, the Government presented reports from government polygraph experts, criticizing Mr. Teceno’s compliance with accepted testing protocol and disagreeing with his conclusion that Mr. French’s test results justified a no deception indicated opinion. Gov’t’s Second Am. Sentencing Attach. 4 Jan. 29, 2016 Internal Revenue Service Review of Psychophysiological Detection of Deception (PDD/Polygraph) Examination Administered on Jan. 14, 2016 (ECF No. 632); Gov’t’s Second Am. Sentencing Attach. 5 Feb. 3, 2016 Dep’t of Defense Psychophysiological Detection of Deception (PDD/Polygraph) Exam. Administered on Jan. 14, 2016 (ECF No. 632). The Court reviewed the other authority presented by the parties and views the authority from other circuits to be informative but not determinative. See Gov’t’s Second Suppl. Mem. at 10-16; French’s Second Suppl. Mem. at 7-9.
B. Polygraph Results and Sentencing
The Court will not consider Mr. Teceno’s polygraph test results at the sentencing hearing for Malcolm French. It declines to do so because first, as the Court has observed, the First Circuit has expressed its unease with the validity of polygraph test results.
Next, the Court is aware that “[e]videntiary requirements at the sentencing stage are significantly less rigorous than they are at trial.” United States v. Hinckley, 803 F.3d 85, 92 (1st Cir. 2015). The First Circuit has written that the “only evidentiary requirement at sentencing is that the sentence be based on information which has ‘sufficient indicia of reliability to support its probable accuracy, ’” United States v. Figaro, 935 F.2d 4, 8 (1st Cir. 1991) (quoting U.S. Sentencing Guidelines Manual, § 6A1.3), and the sentencing court retains discretion to determine “both the relevance and reliability of the sentencing information.” United States v. Luciano, 414 F.3d 174, 180 (1st Cir. 2005) (quoting United States v. Iquaran-Palmar, 926 F.2d 7, 10 (1st Cir. 1991)).
Here, the Court is concerned that arguments about the validity of polygraph examinations in general and Mr. Teceno’s polygraph examination of Mr. French in particular will be “more trouble than it is worth.” Castro-Caicedo, 775 F.3d at 102. The Court will not put polygraph testing on trial. The sentencing hearing to determine appropriate punishment should not devolve into a Daubert hearing to determine the scientific validity of a post-verdict polygraph examination.
Even if it has the inherent authority to schedule a Daubert hearing to test Mr. French’s polygraph experts against the Government’s polygraph experts and to rule on the validity of polygraph testing in this context, this is not the right case to do so. The jury verdict in this case was issued on January 24, 2014. Jury Verdict. The delay in sentencing has been caused mostly by the numerous post-verdict and sentencing motions filed by the Defendants. For example, on December 1, 2015, the Court set February 10, 2016 as the date for the sentencing hearing. Notice of Hr’g (ECF No. 600). Mr. French did not raise the polygraph issue until February 3, 2016, French Suppl. Mem., only a week before the scheduled sentencing hearing, which forced the Court to continue the February 3, 2016 hearing. On February 23, 2016, the Court scheduled the sentencing hearing for April 21, 2016, more than two years after the verdict. Notice of Hr’g (ECF No. 626). To hold a Daubert hearing-and none has been requested-would only further delay Mr. French’s sentencing. Mr. French presented evidence from Mr. Teceno, Dr. Raskins, and Dr. Honts, supporting the polygraph results; the Government presented countervailing evidence from Lisa Holtz and Timothy ...