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United States v. Ford

United States Court of Appeals, First Circuit

October 14, 2016

JAMES F. FORD, Defendant, Appellee.


          Hunter J. Tzovarras 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.


         James F. Ford, with assistance from his wife Darlene and his sons Paul and Jim, [1]directed a marijuana-growing operation out of a home in Monroe, Maine. Acting on a tip from Jim's girlfriend, police executed a search warrant and interviewed James, who openly described the sophisticated operation and discussed his previous marijuana-growing case in Massachusetts. After a trial, a jury convicted him on the four counts charged in the superseding indictment: conspiracy, manufacturing over 100 marijuana plants, maintaining a residence for marijuana manufacturing, and possessing a firearm as a felon. The district court applied a statutory mandatory minimum and sentenced James to 120 months in prison followed by eight years of supervised release. On appeal, James challenges his convictions and his sentence. Finding no reversible error, we affirm.

         I. Background

         On the evening of November 15, 2011, Maine drug enforcement officers, via loudspeaker, ordered the occupants of James's and Darlene's home to exit and executed a search warrant. The officers discovered a large marijuana-growing operation and two disassembled firearms under a makeshift bed outside of one of the cultivation rooms.

         Later that evening, James discussed the operation in detail during a recorded interview. He described the intricate set-up, which he was "pretty proud of, " but lamented the chores and expenses required by the operation. For example, James explained he had to empty air-conditioner buckets every morning or else they would "run over." He also had to collect water from a spring in Dixmont, Maine, using a 150-gallon tank, because the well water at the home was "horrible" and would "kill" the plants. In addition, James's crop "had bug problems, " but he used hypoaspis miles, a type of mite, to control fungus gnats attracted to the marijuana plants. James told the officers he normally yielded either eight or twelve pounds of marijuana every nine weeks, [2] had produced thirty-seven total harvests, and had sold each pound for approximately $2, 000. He deciphered some of the acronyms on a calendar officers found in the home, explaining "H1" referred to harvest one and "H2" meant harvest two.

         Notably, James volunteered during the interview "you already know that I got popped in Mass" when explaining his previous growing operation in Wakefield, Massachusetts, which had been uncovered through a confidential informant. James revealed he paid his attorney in Massachusetts over $20, 000 yet still "ended up with a frigging . . . felony conviction because they forced me to plea bargain." He further disclosed that he lost a house in connection with the bust, which he thought was unfair because the property was not purchased with "drug money" and his "name wasn't even on the search warrant."

         On April 23, 2013, the grand jury returned a superseding indictment against members of the Ford family. Count 1 charged James, Darlene, and Paul with conspiring to manufacture 100 or more marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count 2 contained the following language:

         On about November 15, 2011, in the District of Maine, defendants

Did knowingly and intentionally manufacture a Schedule I controlled substance, specifically, 100 or more marijuana plants, and did aid and abet such conduct, in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2.
It is further alleged that the penalty provisions of Title 21, United States Code, Section 841(b)(1)(B) apply to the conduct described herein.

Count 3 charged James and Darlene with maintaining a residence for the purpose of manufacturing marijuana in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2. And Count 5 charged James with possessing firearms as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

         A three-day jury trial commenced on November 19, 2013. During opening statements, defense counsel acknowledged that James grew marijuana. His attorney instead focused on defending against the conspiracy charge, rebutting the allegation that James grew over 100 marijuana plants, and asserting that the main purpose of the residence was not for growing marijuana. He argued that although Darlene "ke[pt] track of the family finances, " she was not involved in the growing operation. Moreover, defense counsel informed the jury that, while James and Darlene were away, Jim "snuck" his girlfriend into the house and revealed the operation in an attempt to demonstrate he could support her. Jim "wanted to seem like he was part of" the operation even though he wasn't, defense counsel insisted.

         James Weaver, a retired special agent with the Maine Drug Enforcement Agency, testified that Jim and Paul were covered in "small green flecks" and smelled of marijuana after exiting the home on the day of the search. Twenty-four marijuana plants were found in one room, an additional twenty-four plants in a separate room, and 163 starter plants in yet another room. All the plants had root systems, and the parties stipulated the plants were marijuana. The government also played the recorded interview of James for the jury without objection.

         Weaver further testified that officers discovered two rifles in the home, both of which the parties stipulated were firearms under federal law. He also described calendars found in the home which listed various figures next to the words "payday, " "income, " and "Boston." Moreover, Weaver explained, the "Boston" figures often corresponded to "M" dates on another calendar, which he believed referred to "the market or move date, the date that [James] sold that marijuana." Notebooks, also seized during the search, listed "$760 J and P payday" on various dates, as well as other figures next to the word "income." Checkbooks reflected payments of $939 and $831 to the electric company. Weaver testified the handwriting from the calendars, notebooks, and checkbooks all appeared to be the same as the handwriting from DMV records filled out by Darlene.[3]

         Photographs, videos, and emails discovered during the search were presented to the jury. The photographs showed James tending marijuana plants and collecting water from the spring in Dixmont. A separate photograph showed Paul collecting water from the same spring. A video depicted James firing the Sig Sauer .229 rifle at a shooting range in Jackson, Maine, with Darlene narrating in the background.

         The emails contained what appear to be discussions between members of the Ford family about the growing operation. For example, in one email to Paul, James complained that Paul was "useless at H time." James told Paul not to come to the house without calling because he had "expropriated way too much material recently, obviously to fund your journey into spaceland." Nevertheless, James informed Paul: "I am not booting you out of the business." In response, Paul complained to James that he did not understand "this crap about not being on your property, " since he would "have to be over there at least two or three times a week to get H2O for this place and check on the annex." Paul continued: "I don't care if you say the annex is Mom's. I am still going to be working on it--lights, CO2, refill, et cetera, et cetera. I did [a] load of work on the place getting it running while you were in Jamaica, thank you very much." Paul stated he did not want to hear "any more of this one-man operation bullshit anymore."

         In another email, Paul told James that Darlene had been "spending a little too much on these cruises things, but, you know what, she does one hell of a job being a secretarial to this whole conundrum we call business." Paul insisted that he be given "a little bit more of the responsibility, " because "when it's just me and you, we run this place like NASA." Paul also recommended that James keep Jim "away from the actual ops" and instead "[s]et him up doing all of the soil and buckets and fert, cal ni., CO2, anything we need." Weaver testified those materials are used for growing marijuana. In an email to Darlene, James reported Paul's comment that she was "a great secretary" and informed her that Paul brought "my bugs around 8:00 p.m." but did not stay long. Weaver testified he understood "bugs" to be a reference to the "hypoaspis miles mites" used to eat fungus growing on marijuana plants, and James conceded this point during his testimony.

         Michael Ballback, the asset forfeiture investigator, testified James's and Darlene's bank records showed total deposits of $65, 277.93 in 2009, $135, 397.55 in 2010, and $80, 935.44 in 2011, totaling $281, 610.92, of which $216, 156.45 were cash deposits. Moreover, the deposit dates often corresponded with the "income" dates listed in the notebooks and the "M" dates listed in the calendars seized during the search. James and Darlene paid $25, 336.62 for electricity from 2009 to 2011 and $13, 097.98 for rental cars from 2010 to 2011.

         Jim's ex-girlfriend, Cassandra Spencer, testified for the government. Prior to her testimony, James renewed his pretrial hearsay objection. Defense counsel argued Spencer's testimony as to statements made by Jim when he revealed the marijuana operation to her was not admissible under Federal Rule of Evidence 801(d)(2)(E) as statements "in furtherance of the conspiracy." Based on the government's proffer and its recollection of Spencer's testimony during Darlene's trial, the district court ruled that the statements furthered the conspiracy because

she was told, basically, not to say anything, that she was suspicious about what was going on, and the whole purpose of the blindfolding and the displaying of the alleged operation was to quell her suspicions and to get her to be quiet about them.
So quieting someone who's suspicious about the conspiracy is in furtherance of the conspiracy from my viewpoint.

         Spencer testified she became pregnant shortly after she began dating Jim. Jim told her that he worked with his father and brother "building control systems that students would train on" for a company called Boaleeco, [4] but he "never seemed to . . . maintain an actual work schedule." In particular, the night before one system was to be delivered, Jim "had gotten so high that he couldn't wake up." That surprised Spencer, so she began to question Jim about what he did for a living. When asked by the prosecutor "what exactly . . . were your questions, " Spencer testified: "Well, you're not working like you said you were, you know. And why is it okay that you're not delivering these systems as you said, you know? I didn't understand what was going on." One night, Jim blindfolded Spencer, brought her to his parents' home while they were away, and showed her the marijuana-growing operation.

         When the prosecutor asked about Spencer's conversation with Jim that night, James renewed his hearsay objection. The district court again overruled the objection, explaining:

[I]f you're involved in a drug-trafficking conspiracy and you have a serious, intimate relationship with someone and they begin to suspect what you're doing and you bring them along and you say, this is what we're doing, but this is the family business, but you--now that you ...

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