Petition for Writ of Certiorari — Clark v. United States
Supreme Court brief1994
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IN THE
Supreme Court of the United States
OCTOBER TERM, 1994
No.
DONALD CLARK
Petitioner,
VS.
THE UNITED STATES OF AMERICA
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Brief for Petitioner
BENNIE LAZZARA, JR.
LAZZARA and PAUL, P. A.
606 Madison Street,
Suite 2001
Tampa, Florida 33602
(813)229-2224
Counsel for Petitioner
Donald Clark
1
QUESTION PRESENTED
l. In applying the Federal Sentencing Guidelines, may the
District Court attribute the entire one million marijuana plant out-
put, of a 10 year, 28 man conspiracy, to the Defendant by simply
adopting the United States Probation Officer’s Pre-sentence
Investigation Report without making any specific, individualized
findings of fact as to the scope of the Defendant’s agreement to
undertake criminal activity and without making specific, individual-
ized findings as to what actions of others were reasonably foresee-
able to the Defendant in connection with scope of his agreement?
— en
ll
TABLE OF CONTENTS
Page
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CONSTITUTIONAL, STATUTORY AND
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PURSPASGsey BUS COMRAAIN DOING? PEt WRIT 1... cc ccc 14
I. The Eleventh Circuit Court of Appeals, as well as other
Circuit Courts of Appeal, have determined that for sentencing pur-
poses, a member of a drug conspiracy is liable for his own acts and
the acts of others in furtherance of the activity that the defendant
agreed to undertake and that are reasonably foreseeable in connec-
tion with that activity. Thus to determine a defendant’s liability for
the acts of others, the district court must first make individualized
findings concerning the scope of criminal activity undertaken by
the particular defendant. Despite the Eleventh Circuit’s holding in
Ismond, requiring district court judges to make specific findings of
fact in drug conspiracy cases, the Court affirmed Mr. Clark’s sen-
tence of life imprisonment without making individualized find-
ings. From the evidence at trial, it was clear that Mr. Clark was
directly involved in only a minute portion of the alleged one mil-
lion marijuana plants produced by the conspiracy. This decision
was contrary to decisions in the Eleventh Circuit as well as deci-
sions in other circuits and therefore this Courts intervention is
required.
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INDEX TO APPENDIX
APPENDIX A
Transcript of the Sentencing Proceedings before the Honorable Elizabeth
A. Kovachevich, United States District Court for the Middle District of
PR IG FOCI 6. SOE ccssvacsnscactéctcdantatetinatcammemickanitaaeans A-1
APPENDIX B
Pre-Sentencing Report prepared by United States Probation Officer,
PIE FO. FE oo seciccasinssintnccnntinrestitininivisbeiaiianabenichisnhaminetimapliaiaiandias B-1]
APPENDIX C
Order from the United States Court of Appeal for the Eleventh Circuit
affirming the sentence imposed by the District Court, dated
SOG Di. Fa asics vce ciesconbeclakalccasdaitanadaaasatdsaiiblevestabecauiiasaesaasiiiiail C-1
APPENDIX D
Order from the United States Court of Appeal for the Eleventh Circuit
denying the Suggestion of Rehearing En Banc, dated
DE 29, Bet iattnsaiicicelcenthoadnnpienaantionaisaiaaaanadeimanade D-1
iV
TABLE OF AUTHORITIES
Cases:
United States v. Adams,
Be Be fas 8 ee eae rr rear 16
United States v. Beasley,
ee Ee CO ee FOE 0 i dou oes hus heees ce ewaedds 17, 19
United States v. Chitty,
Se ee BRE BOED och eas baevcvusseeeeuw es “als a
United States v. Clark,
es ca anebs heueutuewtewes 1,18
United States v. Clavis,
igh oe BF te RE: : Se a ee a ae are 5
United States v. Ismond,
993 F.2d 1498 (11th Cir. 1993) .............. 2, 5, 14, 15, 20, 21
United States v. Young,
No. 93-3551, 1994 U.S. App. LEXIS 24097 (7th Cir. Sept. 2, 1994) ..2
Statutes, Regulations and Rules:
ee a ee re ee Pee ee eee 2
pS er re rere nares err are 2
Federal Sentencing Guidelines
rn ee ere
Rules of the Supreme Court,
an a ak oh wee WA a Wak Ok ee a eae 4
]
IN THE
Supreme Court Of Che United States
OCTOBER TERM, 1994
NO.
DONALD CLARK
Petitioner,
VS.
THE UNITED STATES OF AMERICA
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
The Petitioner, Donald Clark, (hereinafter “Mr. Clark’”’),
respectfully prays that a writ of certiorari issue to review the judg-
ment of the United States Court of Appeals for the Eleventh Circuit
entered in the above referenced matter on January 5, 1994
OPINIONS BELOW
The decision of the Eleventh Circuit Court of Appeals is Reported
at 13 F.3d 409 (11th Cir. 1994). The Eleventh Circuit Per Curium Affirmed
the conviction and sentence of the Defendant and issued a brief unpublished
opinion. Their writing is reproduced in the Appendix hereto. (App. C-1).
The Eleventh Circuit also Denied a Petition for Rehearing and a Suggestion
for Rehearing En Banc without an opinion. (App. D-1).
Se
2
JURISDICTION
Mr. Clark’s Petition seeks review of the Judgment of the Eleventh
Circuit Court of Appeals entered on January 5, 1994. (App. C-1). This
Court’s jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1). This
Petition presents to this Court a question which the United States District
Court of Appeals for the Eleventh Circuit has answered in a manner which
is in conflict with other decisions of the Eleventh Circuit and in conflict
with decisions of another United States court of appeals on the same mat-
ter. The cases which this decision is in conflict with are U.S v. Ismond, 993
F.2d 1498, (11th Cir. 1993), U.S. v. Young, No. 93-3551, 1994 U.S. App.
LEXIS 24097 (7th Cir. Sept. 2, 1994).
Additionally, the Eleventh Circuit has so far departed from the
accepted and usual course of judicial proceedings, or sanctioned such a
departure by a lower court, as to call for an exercise of this Court’s power
of supervision.
A Petition for Rehearing and A Suggestion for Rehearing En Banc
were denied on July 19, 1994. (App. D-1).
CONSTITUTIONAL, STATUTORY AND
REGULATORY PROVISIONS
l. 21 U.S.C. § 846.
Attempt and conspiracy
Any person who attempts or conspires to commit any offense
defined in this subchapter shall be subject to the same penalties as those
prescribed for the offense, the commission of which was the object of the
attempt or conspiracy.
3 28 U.S.C. § 1254(1)
Courts of appeals; certiorari; certified questions
Cases in the courts of appeals may be reviewed by the Supreme
Court by the following methods:
(1) By writ of certiorari granted upon the petition of any party to
k
any civil or criminal case, before or after rendition of judgment or
decree;
(2) By certification at any time by a court of appeals of any ques-
tion of law in any civil or criminal case as to which instruction are
desired, and upon such certification the Supreme Court may give
binding instructions or require the entire record to be sent up for
decision of the entire matter in controversy.
Federal Sentencing Guideline § 1B1.3
Relevant Conduct (Factors that Determine the Guideline Range)
(a) Chapters Two (Offense Conduct) and Three (Adjustments).
Unless otherwise specified, (i) the base offense level where the
guideline specifies more than one base offense level, (ii) specific
offense characteristics and (iii) cross references in Chapter Two,
and (iv) adjustments in Chapter Three, shall be determined on the
basis of the following:
(1) (A) all acts and omissions committed, aided, abetted, coun-
seled, commanded, induced, procured, or wilfully
caused by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a
criminal plan, scheme, endeavor, or enterprise under-
taken by the defendant in concert with others, whether
or not charged as a conspiracy), all reasonably foresee-
able acts and omissions of others in furtherance of the
jointly undertaken criminal activity, that occurred dur-
ing the commission of the offense of conviction, in
preparation for that offense, or in the course of attempt-
ing to avoid detection or responsibility for that offense;
(2) solely with respect to offenses of a character for which
§3D1.2(d) would require grouping of multiple counts, all acts and
commissions described in subdivisions (1)(A) and (1)(B) above
that were part of the same course of conduct or common scheme or
4
plan as the offense of conviction;
(~) all harm that resulted from the acts and omissions specified in
subsections (a)(1) and (a)(2) above; and all harm that was object of
such acts and omissions; and
(4) any other information specified in the applicable guideline.
(b) Chapters Four (Criminal History and Criminal
Livelihood) and Five (Determining the Sentence).
Factors in Chapters Four and Five that establish the
guideline range shall be determined on the basis of the
conduct and information specified in the respective
guidelines.
4. Supreme Court Rule 10.1(a): (type provision).
Considerations Governing Review on Writ of Certiorari
.1. Areview on writ of certiorari is not a matter of right, but of judi-
cial discretion. A petition for a writ of certiorari will be granted only when
there are special and important reasons therefor. The following, while nei-
ther controlling nor fully measuring the Court’s discretion, indicate the
character of reasons that will be considered:
(a) When the United States court of appeals has rendered a
decision in conflict with the decision of another United
States court of appeals on the same matter; or has decid-
ed a federal question in a way in conflict with a state
court of last report; or has so far departed from the
accepted and usual course of judicial proceedings, or
sanctioned such a departure by a lower court, as to call
for an exercise of this Court’s power of supervision.
5
STATEMENT OF THE CASE
A. Nature of the Case.
Mr. Clark appealed his criminal conviction in the United States
District Court for the Middle District of Florida, Tampa Division to the
Eleventh Circuit Court of Appeals. After the Briefs in Mr. Clark’s appeal
had been filed, but while the appeal was still pending, the Eleventh Circuit
decided some cases which had a direct bearing on an issue which Mr. Clark
was arguing on appeal. This issue dealt with the relevant conduct of Mr.
Clark and how much of the marijuana generated by this 10 year approxi-
mately 100 person (28 indicted and approximately 80 unindicted co-con-
spirators) conspiracy could be attributed to Mr. Clark when the evidence at
trial clearly showed Mr. Clark’s direct involvement was minimal. Counsel
for the Appellant sent the Eleventh Circuit a Notice of Supplemental
Authority for the case of United States v. Clavis, 977 F.2d 538 (11th Cir.
1992). Clavis was a co-defendant of an individual in a separate appeal that
was decided shortly thereafter and was directly on point in Mr. Clark’s case.
The Eleventh Circuit’s decision in U.S. v. Ismond, 993 F.2d 1498 (11th Cir.
1993) was the case which the Appellant believed was directly on point with
the relevant conduct issue which was pending on Mr. Clark’s appeal.
Despite the decision in the Ismond case by the same court, Mr.
Clark’s appeal was Per Curium Affirmed on January 5, 1994 with the Court
writing a brief, unpublished opinion. (Appendix C). The unpublished opin-
ion did not address the relevant conduct issue argued by the Defendant and
subsequently addressed in Ismond. Based on the Order affirming the
District Court’s decision, Mr. Clark filed a Petition for Rehearing and a
Suggestion for Rehearing En Banc. The Eleventh Circuit treats a
Suggestion En Banc as a Petition for Rehearing, if en banc consideration is
not given. (11th Circuit Local Rule 35-6). En banc consideration was not
given in Mr. Clark’s case and the original justices considered the Petition
for Rehearing. The Petition for Rehearing was denied on July 19, 1994,
without an opinion. Mr. Clark is now petitioning this Court for a Writ of
Certiorari to review the relevant conduct issue. To determine relevant con-
6
duct, the following issue must be addressed: whether it was proper to hold
Mr. Clark responsible for the entire output of the conspiracy when the
District Court failed to make individualized findings as to both the scope of
his agreement to undertake criminal activity and as to whether it was rea-
sonably foreseeable, based on his agreement, that the entire conspiracy
would involve one million marijuana plants.
B. The Facts of the Case.
Myakka City, located in Manatee County, Florida, has two stores, a
post office, and a couple of churches. R 13-91, According to the govern-
ment, Myakka City was the home of “Myakka Gold, marijuana.” R 15-6.
Myakka City was also the home of the Appellant, Donald Clark. Mr. Clark
had a farm that consisted of a couple of trailers and a barn. R 13-35, 37.
The farm consisted of approximately 640 acres and was five or six miles
from Myakka City. R 13-31.
On May 24, 1985, Manatee County Sheriff’s Deputy John Potts
executed a search warrant on Mr. Clark’s farm. R 13-29. This search yield-
ed evidence which lead to Mr. Clark’s arrest and conviction on State of
Florida charges of possession of cocaine, possession of marijuana with
intent to sell, possession of marijuana, and manufacture of marijuana.
Government Exhibit (GE) 186.2 During his arrest on these charges Mr.
Clark admitted that he had been growing marijuana, though there was no
indication that he mentioned anyone else’s involvement. R 13-84. Notably,
Mr. Clark was not then charged with any type of conspiracy.
In 1987, Deputy Potts again visited the Clark farm. R 13-70. At
that time Mr. Clark was charged with possession of marijuana and posses-
sion of a firearm by a convicted felon. GE 187.3 Again, there was no indi-
cation that Mr. Clark was involved with anyone else, or that he was culti-
vating marijuana at that time.
l
2
References are to the Record on Appeal.
As a result of the charges filed against him as a result of this search, Mr.
Clark was sentenced to 18 months in prison, (imposition of which was
stayed) and two years community control.
7
The years 1986 and 1987 led to events which resulted in the indictment of
Mr. Clark and his twenty-seven co-defendants. In 1986, Manatee County
Sheriff’s Deputy John Potts arrested Gary Huffman for fleeing and eluding
a police officer and resisting arrest without violence. R 12-143. In the fol-
lowing year, 1987, Manatee County Sheriff’s Deputy David Livingston
arrested Mr. Bruce Hendry and Mr. Timothy Young for possession of
approximately 2,000 marijuana plant seedlings. R 7-13. Huffman, Hendry,
and Young became the so-called “insiders” who provided the lion’s share of
the direct testimony against Mr. Clark at trial. Furthermore, the informa-
tion provided by these “insiders” to the case agents made up a large part of
the case agents’ testimony against Mr. Clark.
Against this historical background the trial of Mr. Clark took place.
Despite approximately 15 days of trial, testimony of Mr. Clark’s conspira-
torial activities with other persons was surprisingly sparse. A review of this
testimony follows;
Bruce Hendry testified that in 1980 or 1981, while working on the
Clark farm, Donald Clark provided him marijuana to smoke. R 7-38, 39,
40, 41. In 1983, Hendry grew a marijuana crop in partnership with Philip
Coker. R 7-44. Coker had requested Hendry’s help with the crop in return
for fifty percent of the field. R 7-45. Coker told Hendry that Donald Clark
originally supplied Coker with the materials necessary to grow the field. In
return Mr. Clark was supposed to receive 50% of the crop. However, by his
own choice, Donald Clark never received any of the marijuana crop. R 7-
46, 51. Hendry believed that Donald Clark was no longer involved with the
field because Clark had seen how poorly the field was doing and told Coker
to keep the crop. R 7-60.
Hendry also testified that throughout the 1980’s he and Mr. Clark
had general conversations about various methods of growing marijuana,
At this time Mr. Clark was sentenced to 18 months in prison.
8
though there was no testimony that they ever grew together. R 7-86, 87. In
January of 1985, two years after his involvement in the one field with
Coker, Hendry and Donald Clark agreed to grow marijuana seedlings
together in a light room on the farm. Also in early 1985, Hendry agreed to
sell some marijuana for Donald Clark. R 7-94, 95. This testimony consti-
tuted the extent of Hendry’s involvement with the Appellant Donald Clark,
though Hendry testified, not mentioning Donald Clark, that in 1985 he
helped Gary Clark, the Appellant’s son, grow a field on the farm. R 10-94.
According to Hendry, 7 or 8 growers in the Myakka area would
exchange information among themselves about how to grow marijuana.
There were 10 growers in the area. R 7-146, 151. Hendry did not name the
Appellant Donald Clark as one of those who exchanged information.
According to Hendry, these growers who exchanged information kept the
location of their fields secret even from each other as the growers were
independent of each other and competitors. R 7-147, R 10-59.
Philip Coker confirmed the details of the 1983 partnership with
Hendry. R 10-101. Coker also testified that Donald Clark told him that
Clark had taught Hendry, his two sons (Duane and Gary), and Bosie Gill to
grow marijuana. R 10-107.
Coker testified that over a span of a couple of months he was in
Donald Clark’s grow room three or four times. R 10-110, 111. Coker
observed six people in the grow room other than Clark. Those persons told
him they were doing the same thing in the room that he was, which was to
take some of the plants. R 10-112. Coker did not testify what arrangements,
if any, these people had with Clark, though he did indicate that a person
named Aldridge told him that Aldridge had a deal with Donald Clark much
the same as Coker’s deal with Clark. R 10-121.
The next government witness was Timothy Young. Young’s testi-
mony about Mr. Clark was quite limited. Young testified that in 1985
Hendry told him about the seedling deal that Hendry had with Clark.
Hendry took Young to the grow room, though Young did not see anything
growing. To Young’s knowledge Hendry never got the seedlings.
9
R 10-155. On direct examination the government asked Mr. Young, who
was named as a co-conspirator, what he had plead to in this case. Young
replied that he had plead to “[c]onspiracy to cultivate marijuana.” R 10-166.
Government witness Gary Huffman provided no direct testimony
about Donald Clark. Huffman testified generally that if someone had a
good idea about growing marijuana it would be shared. R 11-30. Huffman
did not testify that Clark was involved in this sharing of information.
Additionally, Huffman testified, in response to a hypothetical question, that
if he or another grower saw law enforcement in someone’s field they would
let that person know they needed to be careful. R 11-45. Again, Huffman
did not relate Donald Clark to this activity.
Huffman testified that each time he joined with a person to grow
marijuana it was a separate business transaction. R 11-90. Huffman testi-
fied that there was no common plan and that your business was just between
“you and your partner”. Over the years through general talk, growers
became aware of what the other growers were doing. R 11-90, 91, 92. It
was common knowledge who had marijuana fields, but they were not in
business together. R 11-111, 112, 113.
Next to testify was Raymond King. King had no testimony con-
cerning Mr. Clark. He testified that in 1987, the year that Donald Clark was
arrested for the violation of his 1985 probation and two new charges, he
went to the grow room with Duane Clark and that Donald Clark was not
present. R 11-129, 130.
Also testifying was Rob Whaley. Mr. Whaley’s only testimony
concerning Mr. Clark was that in 1980 or 1981 he smoked marijuana with
Clark on about 15 occasions. R 11-134, 155. Whaley also saw Duane and
Gary Clark smoke marijuana with their father during that time. R 11-158.
Other persons were present. R 11-160.
Brian Coker, brother to Phil Coker, testified that he had never done
any business with Donald Clark, R 12-31, 32, 33. In the early 1980’s he
Saw marijuana on the farm when he was with Clark’s sons. R 12-66. Brian
10
Coker also testified that at one time he had a conversation with Mr. Clark
in which Donald Clark stated that there was a lot of money to be made in
the marijuana business. R 12-87.
Also admitted into evidence was a map Deputy Livingston
designed which showed marijuana fields he visited during his investigation.
R 5-149, GE 177. The map had on it yellow, green and red/green dots. R
5-149. The single yellow dot indicated the marijuana field discovered on
the Appellant’s farm in 1985. R 5-150. Green dots indicated marijuana
fields that Livingston had eradicated. R 5-150. The red/green dots indi-
cated all the fields shown to him by Bruce Hendry and Gary Huffman. R
5-150. Deputy Livingston indicated that every field he had ever been per-
sonally involved with was represented on GE 177 by a green dot. R 6-136.
On cross-examination Deputy Livingston testified he had discussed
on direct testimony thirty or forty marijuana fields. R 7-5, R 5-152 through
168. Approximately half of the marijuana fields designated on GE 177 and
testified about were not related to Mr. Clark to Livingston’s knowledge.
Several of the fields had nothing to do with the conspiracy alleged in the
indictment. R 7-6. The defense moved for a mistrial based on intentional
prosecutorial misconduct for eliciting testimony about marijuana fields not
related to the Appellant. R 7-7.
The government represented that “most of those fields do relate to
the conspiracy”. R 7-8. The government represented that it would link
these fields to the conspiracy through Deputy Livingston or through other
witnesses. The motion for mistrial was denied subject to being renewed at
the appropriate time. R 7-8.
At sentencing the Defendant specifically objected to the calcula-
tions contained in the PSR relative to Mr. Clark’s relevant conduct. The
Court stated that it, “adopts the factual statements contained in the pre-sen-
tence report, as to which there is no objection and as to the controverted fac-
tual statements, the Court adopts the position of Probation as stated in the
addendum.” (R18-31).
1]
In the argument at sentencing on the relevant conduct point which is the
subject of this Petition, the Government made the following statement to
show why it believed that Mr. Clark should be held responsible for the
entire output of the conspiracy:
Mr. Page: Yes, Your Honor. The Government feels that paragraph
fifty-eight is bottomed in the facts which came out on the trial,
specifically the testimony came from Lieutenant John Potts in his
estimation was that this conspiracy charged in count one, the only
count that went to trial, involved in his estimations and in his expert
opinion approximately one million marijuana plants. Under the
guidelines, it’s 1B1.3, page 1.16 of the guideline manual, the test
for whether we can include that number of plants in determining
the Defendant’s applicable range is in the case of criminal activity
undertaken in concert with others. Whether or not charged as a
conspiracy, the conduct for which the Defendant would be other-
wise accountable also includes conduct of others in furtherance of
execution of jointly undertaken criminal activity that was reason-
ably foreseeable by the Defendant.
And so it’s a two prong test. Number one, were the actions
of Mr. Clark’s co-conspirators in furtherance of the conspiracy, and
number two, did Mr. Clark know what they were doing or would
he, could he be found to have reasonably foreseen about the activ-
ities and marijuana cultivation and growing that his co-conspirators
were undertaking. And so, really in looking at this issue, our posi-
tion is made evident in number fifty- eight, should the Defendant
be responsible for all the drug transactions he was aware of, and
number two, that he should have reasonably foreseen.
I'd like to break that down into two parts, number one, of
what he was specifically aware of. And it was clear from the trial
12
testimony that he was involved in nine hundred marijuana plants,
the number approximate number that were seized in 1985. It was
clear from the trial testimony that Phil Coker and he combined and
confederated and conspired together in growing a marijuana field.
It was clear from the trial testimony that Bruce Hendry sold mari-
juana on behalf of Donald Clark. It was clear from the trial testi-
mony that there were a nurnber of seedlings grown in the grow
room with Mr. Bruce Hendry and others. And it was clear from the
debriefings that were conducted after the trial of several individuals
that Donnie Clark supplied Sammy Boyett, Richard Copeland and
from the trial testimony Mr. Whaley and others, and the
Government’s evidence at trial which consisted of the notebook
detailing his individual sales, and so that category is well estab-
lished that Mr. Clark was well aware of, from his own personal
dealings, a number of activities of his co-conspirators.
The next category under 1B1.3 is if he wasn’t aware of
some of these, then what can be attributed to him because he should
have reasonably foreseen what his other growers, other members of
the conspiracy were engaged in. And in that regard, the Court is
aware because the Court took the pleas of Duane and Gary Clark,
his sons, and the trial testimony revealed that he taught them how
to grow marijuana, coached them. And the Court is aware of the
trial testimony of Bruce Hendry who testified that Donnie Clark
advised him on how to grow, told him about potash and fertilizer
and weed killer and things like that. And he even discussed floaters
with him. And so it’s not unreasonable to attribute the quantities
Bruce Hendry and the others grew after Mr. Clark got them started,
advised them and counseled them.
Phil Coker was another one that the Court heard from. And
Coker testified that he was set up in a field, a field that ultimately
13
didn’t do so well. But there were a number of plants there and what
happened to the very pots that Phil Coker used in his operation;
Bruce Hendry took them over and used them. In 1987, the
Defendant was arrested on a violation of probation offense and
found at the time to be in possession of a small amount of marijua-
na. The grow room was back in operation after having been
destroyed in 1985. And all of these things suggest that he reason-
ably should have foreseen what others who he had originally got
started in with went to do, including Mark Massey.
The debriefing testimony from Mark Massey was to the
effect that Donald Clark showed him how to build a drying room.
And lo and behold, plans were done made and there was a drying
room at Mark Massey’s property one of the co-conspirators in
count one and a prolific grower in the Manatee County area. So the
initial exposure of that the Defendant had was Donald Clark with
Bruce Hendry, Brian Coker, and Duane and Gary Clark and those
people branched off much like in chain conspiracy. Mr. Clark may
not have known specific links in this chain afterwards, but he rea-
sonably should have foreseen what those people who he got start-
ed in this activity were going to do. And that conclusion support-
ed by the nature of the beast here, everybody was close associates,
they knew what was going on in the area, and we just don’t feel it’s
unreasonable attribution to put the Defendant — burden him with
the plants that others grew after he became active in the operation.
(R. 18-6-10).
The Trial Court denied the Defendant’s objection to paragraph fifty-
eight, which involved Mr. Clark’s relevant conduct, and held the Defendant
responsible for one million marijuana plants which was the estimated
output of marijuana for the entire conspiracy spanning ten years.
14
On Appeal, the Defendant’s arguments focused more on the issue of prose-
cutorial misconduct and the admissibility of evidence, due to the fact that
the Ismond decision had not been decided until after the briefs in this case
had been filed. The Defendant did make a relevant conduct argument on
appeal and argued that he should not have been attributed the total conspir-
atorial output of marijuana for sentencing purposes. This issue was not
addressed in the unpublished opinion written by the Eleventh Circuit.
REASONS FOR GRANTING THE WRIT
I. The Eleventh Circuit Court of Appeals, as
well as other Circuit Courts of Appeal, have determined
that for sentencing purposes, a member of a drug conspir-
acy is liable for his own acts and the acts of others in fur-
therance of the activity that the defendant agreed to under-
take and that are reasonably foreseeable in connection with
that activity. Thus to determine a defendant’s liability for
the acts of others, the district court must first make indi-
vidualized findings concerning the scope of criminal activ-
ity undertaken by the particular defendant. Despite the
Eleventh Circuit’s holding in Ismond, requiring district
court judges to make specific findings of fact in drug con-
spiracy cases, the Court affirmed Mr. Clark’s sentence of
life imprisonment without making individualized findings.
From the evidence at trial, it was clear that Mr. Clark was
directly involved in only a minute portion of the alleged
one million marijuana plants produced by the conspiracy.
This decision was contrary to decisions in the Eleventh
Circuit as well as decisions in other circuits and therefore
this Courts intervention is required.
Since the sentencing of Donald Clark on November 4, 1991, the
15
11th Circuit has decided several cases which require certain steps to be fol-
lowed in applying the Federal Sentencing Guidelines to cases involving
drug conspiracies. The purpose of the steps is to insure that a conspirator
is not held liable for the conspiracy’s entire output of drugs when in actual-
ity the conspirator should only be held responsible for a quantity less than
all. United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993) In
Ismond, the United States Court of Appeals for the 11th Circuit outlined the
necessary steps to sentencing a member of a drug conspiracy:
“For sentencing purposes a member of a drug conspiracy is
liable for his own acts and the acts of others in furtherance of
the activity that the defendant agreed to undertake and that
are reasonably foreseeable in connection with that activity.
Thus to determine a defendant’s liability for the acts of oth-
ers, the district court must first make individualized find-
ings concerning the scope of criminal activity undertaken by
a particular defendant. Once the extent of the defendant’s
participation in the conspiracy is established, the court can
determine the drug quantities reasonably foreseeable in con-
nection with that level of participation. If the court does not
make individualized findings, the sentence may nevertheless
be upheld if the record supports the amount of drugs attrib-
uted to a defendant. The government must establish the
quantity of drugs by the preponderance of the evidence. Id.
at 1499.
Following the reasoning of the 11th Circuit in Ismond, the deter-
mination of the scope of the agreement to undertake criminal activity is
very important because it is the first step in the sentencing analysis and is
the key factor used in establishing the quantity of drugs reasonably fore-
seeable by the defendant. A factual finding well grounded in the facts of
eer anne ae
16
the trial record is crucial to providing a foundation upon which to begin the
sentencing analysis. This necessary foundation helps insure that the con-
clusion of the analysis will result in justice; that is a sentence firmly sup-
ported by the evidence and specifically tailored to fit the crime.
The Federal Sentencing Guidelines recognize that because “a count
can be worded broadly and include the conduct of many participants over a
period of time, the scope of the criminal activity undertaken by the crimi-
nal defendant is not necessarily the same as the scope of the entire conspir-
acy.” U.S.S.G., § 1B1.3, Application Note 2(ii). The sentencing court
should define the scope of Donald Clark’s agreement to undertake criminal
activity in both numbers of co-conspirators and numbers of years. More
importantly the factual finding must be well supported by the evidence.
The sentencing court may not speculate as to the extent of Donald Clark’s
involvement in the conspiracy because the government must establish the
scope of his agreement by a preponderance of the evidence. United States
v. Adams, | F.3d 1566, 1581 (11th Cir. 1993)
During Donald Clark’s sentencing hearing, the District Court
adopted the pre-sentencing report (hereinafter “PSR”, App. A) as an accu-
rate statement of the facts in his case and used those facts in determining a
sentence. (App. A-31) The PSR describes Donald Clark as vertically inte-
grated into the conspiracy and as having a role greater than that of a “min-
imal participant.” (App. B, Paragraph 61) The PSR did not define the
scope of his agreement in the conspiracy in numbers of co-conspirators or
exact periods of involvement. It just simply attributed the drug output of
the entire conspiracy to him, as if he had made an agreement with all 27 of
his co-conspirators and had been active for the entire 10 year period of the
conspiracy with all of the separate growers. As well as attributing to
Donald Clark the entire one million plants of marijuana estimated to be
involved in the conspiracy, the PSR also stated the following about his
involvement: “Donald Clark did not organize, manage, or supervise any
criminal activity. (App. B, paragraph 61) The apparent contradiction
between the PSR’s findings and its conclusions highlight the need
17
for the district judge to make specific findings of fact supported by evi-
dence from the trial to the extent that the Trial Court could have made a
finding by a preponderance of the evidence.
The sentencing hearing is one of the rnost important phases of any
criminal proceeding. Even though the Federal Sentencing Guidelines has
limited the discretion of the judiciary in its ability to specifically tailor sen-
tences to fit the circumstances of particular crimes, district court judges still
maintain a wide degree of latitude in sentencing. The 11th Circuit has
recently recognized that it is critical for district court judges to take an
active role in implementing the Guidelines. Sentencing is too important to
be left to the recommendations of probation officers alone. It is the expe-
rience and knowledge of the judges that is needed to determine whether the
Government has met its burden and proved its case by a preponderance of
the evidence. Furthermore, the judges are needed to make sure the punish-
ment fits the crime and to make sure al! sentences are firmly supported by
the trial record. It may be these recent realizations by the 11th Circuit that
are responsible for two cases that were remanded for re-sentencing because
the court adopted the PSR (or PSI) instead of taking an active role in mak-
ing the specific, individual factual findings outlined in Ismond.
In United States v. Beasley, 2 F.3d 1551 (11th Cir. 1993), the 11th
Circuit noted that the district court adopted the PSI without making any
specific findings as to the quantity of drugs attributable to the defendant. In
United States v. Chitty, 15 F.3d 159 (llth Cir. 1994), the district court
accepted the PSI as controlling. The 11th Circuit determined that the PSI
failed to include evidence of how the defendant knew of past operations, or
the identity of all the conspirators, or the origin of all the marijuana, or how
it was imported, or how it was moved, or what future operations were con-
templated, or in what quantities and by whom. Id. at 162. The decision in
Chitty is a good example of the specificity required in setting forth the fac-
tual basis for sentencing.
In Donald Clark’s case, the PSR lacked specificity in much the
18
same ways as the above cases. It failed to make the most basic inquiries
into the conspiratorial agreements of Donald Clark. It did not determine the
individuals with whom Mr. Clark was in agreement. It failed to specifical-
ly state time periods Mr. Clark was active in the conspiracy. It failed to
break down individual responsibility for the numerous marijuana fields.
Lastly, it arrived at a total quantity of marijuana based upon an estimate
given by an officer involved in only a portion of the case. The Court fur-
ther relied upon a blanket statement in the PSR which stated that the quan-
tity was confirmed by debriefings of Co-defendants who plead guilty to the
conspiracy.
At the same time the PSR ignored trial testimony of other officers
who broke down the quantities, by field and grower and whose total figures,
- although not specifically stated, would have been substantially less.
Although mentioning debriefings, and presumably having that information
available, the probation office gave no indication whatsoever, of who or
how the one million plant figure was arrived at from the debriefings and it
certainly made no assessment of what part Donald Clark was responsible
for. The PSR did identify certain large crops by year, location and individ-
uals who were responsible for them. (App. B-7,8, Paragraphs 36-46).
Donald Clark was not related to these crops in any manner and the PSR
does not list him as a responsible individual.
The Probation Office also failed to recognized facts which were
present and compiled in it’s own report relative to Donald Clark’s role.
Specifically, with respect to the fact that there were 28 individuals charged
in a thirty-nine count indictment. Mr. Clark was only charged in Count one
which was the conspiracy count. The other counts were, for the most part,
possession counts which charged the individuals responsible for specific
marijuana fields. Paragraphs 36-46 (App. B-7,8) of the PSR lists the most
Significant marijuana fields in the conspiracy and the time they were
grown and the individuals involved. Donald Clark is not listed as
responsible for any of them. Due to the Trial Courts failure to make
specific, individualized findings concerning the scope of Mr. Clark’s
_ 19
criminal activity, and its erroneous adoption of a PSR, it is necessary for
this Court to exercise its jurisdiction and correct an improper sentence of
life imprisonment. As in Beasley and Chitty, we ask this Court to correct
the sentence of Donald Clark by remanding this case to the Trial Court with
directions to make specific factual findings as to the scope of his agreement
in the conspiracy, and factual findings regarding the quantity of drugs pro-
duced by his co-conspirators which were reasonably foreseeable in connec-
tion with his agreement.
The Ismond case, enhances the United States Sentencing
Guidelines § 1B1.3(a)(1)(B) in that before holding a defendant responsible
for the acts of others Ismond requires that, “the district court make individ-
ualized findings concerning the scope of criminal activity undertaken by a
particular defendant.” Ismond, at 1499. Since Mr. Clark was only charged
with a conspiracy, it is imperative, in accessing the scope of his criminal
activity, to determine the basic factual findings regarding his agreement.
These basic factual findings would include who Mr. Clark made agreements
with, for what criminal activities, and during what time period. Once it is
determined what criminal activity Mr. Clark agreed to undertake, then the
trial court must access what actions of others were reasonably foreseeable
to him.
The bottom of the last paragraph of the governments argument to
the judge regarding the relevant conduct objection at sentencing crystalizes
the flaw in the Government’s, and presumably the Trial Court’s, thinking
regarding holding Mr. Clark responsible for the entire output of the con-
spiracy. The Assistant U.S. Attorney stated:
Mr. Clark may not have known specific links in this chain
afterwards, but he reasonably should have foreseen what
those people who he got started in this activity were going
to do. And that conclusion supported by the nature of the
beast here, everybody was close associates, they knew
what was going on in the area, and we just don’t feel it’s
20
unreasonable attribution to put the Defendant — burden him with the plants
that others grew after he became active in the operation. (App. A-10).
The Government’s argument starts with a look at the entire con-
spiracy and then works backward to Donald Clark. This type of analysis
will automatically result in attributing the entire output of the conspiracy to
the Defendant. This backwards approach results in a sentence that dispro-
portionately represents the Defendant’s conduct and unfairly punishes him
for the acts of others. In order to avoid this type of result, the 11th Circuit
in Ismond set forth a sentencing approach which is directly contrary to the
approach taken by the Government in Donald Clark’s case.
The Ismond analysis begins with the defendant’s agreements with
other conspirators. These agreements form the basis for determining the
extent of the Defendant’s involvement in the conspiracy. The extent of the
Defendant’s involvement forms the basis for determining what production
of others is reasonably foreseeable and can be attributed to him for sen-
tencing purposes. This analysis yields a quantity of drugs which holds the
defendant accountable for his actions and those reasonably foreseeable to
him as a result of his conduct. At the same time it recognizes the problems
inherent in sentencing a member of a large, nebulous conspiracy involving
numerous people over a long period of time. This also affords the trial court
an opportunity to tailor a sentence which accurately reflects the extent of
the individual defendant’s criminal activity.
For the above stated reasons, the Court should have determined that
Mr. Clark was not responsible for the entire output of his co-conspirators.
Individualized findings as to the scope of the criminal activity undertaken
by Mr. Clark would have resulted in a sentence of several years as opposed
to life imprisonment. It is uncontroverted that Mr. Clark was only directly
responsible for a very small amount of the one million marijuana plants
actually attributed to him for sentencing purposes. The Government
and the Court believed that the actions of the others were
reasonably foreseeable to Mr. Clark. However, the Government and the
21
Trial Court did not make the specific factual findings necessary to support
a sentence of life imprisonment.
CONCLUSION
In it’s decision in United States v. Ismond, 993 F.2d 1498, The
United States Court of Appeals has recently corrected or clarified a wrong
which has existed for many years. The obvious intent was to insure fair
sentencing by the Court for individuals charged in drug conspiracies. This
analysis avoids the potential for a defendant to be held responsible for the
acts of others which were not reasonably foreseeable to him, and allows the
trial court to tailor a sentence to accurately reflect an individuals criminal
conduct. The case of U.S. v. Donald Clark, was exactly such a case where
the reasoning of Ismond should have been applied. In sentencing a defen-
dant for a conspiracy which spans ten years, and involves twenty-eight co-
conspirators, justice requires extra precautions to insure that the punish-
ment fits the crime. The Eleventh Circuit set out these extra precautions in
Ismond, and then failed to follow them by affirming Donald Clark’s sen-
tence. This injustice has resulted in a man being sentenced to life impris-
onment for the acts of others which no reasonable man could have foreseen.
Accordingly, the Petitioner respectfully requests this Court to grant
the Petition for Writ of Certiorari and to require briefs on the merits and oral
Respectfully submitted,
Ver Z i
NNIE XE RKIR yf? hy
LAZZARA and PAUL, P.A. fo y, {
/
606 Madison Street, Ste. 2001
Tampa, Florida 33602
(813) 229-2224
argument of this cause.
Councel For Petitioner
Donald Clark
APPENDIX
A-1
Exhibit A
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA, 90-175-CR-T-17
Plaintiff, Tampa, Florida
versus November 4, 1991
DONALD CLARK, 9:30 a.m.
Defendant.
VOLUME XVI
SENTENCING PROCEEDINGS
BEFORE THE HONORABLE ELIZABETH A. KOVACHEVICH
For the Plaintiff: WALTER FURR ESQUIRE
EDWARD PAGE, ESQUIRE
Assistant U. S. Attorney
500 Zack Street Room 410
Tampa, Florida 33602
813-225-7300
For the Defendant: LANE W. VAUGHN, ESQUIRE
P. O. Box 370 :
Melbourne, Florida 33902
407-723-8675
THOMAS H. OSTRANDER, ESQUIRE
P. O. Box 400
Bradenton, Florida 34206
813-746-1167
A-2
Court Reporter: . CLAUDIA M. FRY, CSR, RPR
Cai <.e.
Official U. S. Court Reporter
611 N. Florida Avenue
Suite 314
Tampa, Florida 33602
813-221-3386
PROCEEDINGS
November 4, 1991
ae Hee ie ee ee KK
*THE COURT: All right, let’s come forward on the Clark
case. All right, Ladies and Gentlemen, this is case number 90-17£
Cr-T-17, United States of America represented by Assistant United
States Attorney Walter Terry Furr and Edward Page. And the
Defendant is present represented by his attorneys Tom Ostrander
and Lane Vaughn and the Defendant is present.
Donald Clark, on June 21, 1991, you were found guilty by a
Jury and were-adjudged guilty of count one of the Indictment
charging you with conspiracy to manufacture, distribute and pos-
sess with intent to manufacture and distribute one thousand or
more marijuana plants in violation of 21, United States Code,
Section 846. It’s the duty of the Court to address several questions.
First of all, Mr. Clark, have you had an opportunity to read and dis-
cuss the pre-sentence report with your attorneys
THE DEFENDANT: Yes, ma’am.
THE COURT: All right. Mr. Vaughn, Mr. Ostrander, did you
go over it with your client?
MR. OSTRANDER: Yes, Your Honor.
THE COURT: All right. Mr. Furr and Mr. Page, have you
read it?
* Format was altered to conform with United States Supreme Court Rules.
A-3
MR. FURR: Yes, ma’am.
MR. PAGE: Yes.
THE COURT: All right. The Court notes in the addendum to
the pre-sentence report that there are certain objections, this is with
the exception of the objections noted in the addendum to the pre-
sentence report. At the present time, are there any other objections
as to the factual accuracy of the report or as to the application of
the guidelines by the probation officer, Mr. Ostrander?
MR. OSTRANDER: Yes, Your Honor. One last objection I'd
like to note for the record is I want to object to the application of
the 2D.1.1A of the sentencing guidelines which calls for a measure-
ment for quantities when the number of marijuana plants exceeds
fifty-one. We believe that the calculation since it was a large cal-
culation resulted in the increase of from one hundred grams per
plant to I believe it’s two kilos per plant and where we’ re objecting
is strictly a legal argument.
I don’t think there’s anything much we can accomplish at this
point in time. I’m objecting to that application, it’s clearly part of
the calculation under this guideline.
THE COURT: What paragraph in particular?
MR. OSTRANDER: Paragraph fifty-six.
THE COURT:-Paragraph fifty-six, I have to circle that, sir. All
right. Now, that is the only other objection, is that correct?
MR. OSTRANDER: That’s correct, Your Honor.
THE COURT: At the present time, does the Government have
any other objections at the present time?
MR. FURR: No, ma’am.
THE COURT: All right. Now, I’m going to note the fifty-six
is to be added here. And you’ve really just made your argument
with regard to fifty-six, correct?
MR. OSTRANDER: That’s correct.
A-4
THE COURT: What’s the Government’s response to para-
graph fifty-six and the argument they’ ve just made.
MR. FURR: I’1l do it. It’s the law. The law says that if you’re
dealing with more than fifty marijuana plants, treat each plant as
equivalent to one kilogram of marijuana. I think that’s clearly stat-
ed in the guidelines in a note at the end of the quantity scales under
2D1.1 and my guidelines, it’s at page 2.47. And I can quote in the
case of an offense involving marijuana plants, if the offense
involved paren close paren fifty or more marijuana plants, treat
each plant as equivalent to one kilogram of marijuana. That’s what
we have here, that’s the law, whether he likes it or not.
THE COURT: What’s your rebuttal?
MR. OSTRANDER: Judge, we’re just simply arguing that’s
an unconstitutional application of the guidelines and it’s a violation
of protection. -It’s clearly in the sentencing guideline.
THE COURT: It certainly is, equal protection.
MR. OSTRANDER: I don’t have any cases that are on point.
MR. FURR: Judge, the Eleventh Circuit dealt with it on a
case, Bradley, 905 Fed. 2nd 359. I believe it was a case involving
a sentencing before Judge Krentzman. The objection there essen-
tially was that — the quantities weren’t as great as they were here.
The argument was essentially the same, that is, the assigning of a
particular weight to the plants based on number. And in the case of
Bradley, rather than the actual weight of the plants themselves, the
Court found it was —that was the law.
THE COURT: Okay. What is your rebuttal, if any?
MR. OSTRANDER: None, Your Honor.
THE COURT: Well, it is the law. The Defendant’s objection
with regard to that is overruled. Now, let’s get into the body, in the
addendum, paragraph fifty-eight. What argument do you want to
make on that?
MR. OSTRANDER: Judge, I believe the initial argument that
. |
¥
*
A-5
I made was as to the calculation of the plants strictly on the basis
of the evidence that was adduced at trial and through whatever
other information it provided to the Office of Parole and Probation.
It was my position that the Government cannot, had not proved
there were male plants involved in the conspiracy, nor did they
prove there were three hundred thousand plants involved in the
conspiracy. Of course, we have no access to any debriefings or
information that was later provided to the Office of Parole and
Probation by the United States Attorneys Office, so I can’t speak to
that, but I’m advised that some of that information had come
through subsequent debriefings. That information has to satisfy the
indicia of reliability such as it becomes part of a sentencing to allow
you to make that actual alteration, that’s why I objected to it. That’s
part of my argument. I'll go on after we handle that part.
THE COURT: Okay. Mr. Page, are you doing this?
MR. PAGE: Yes, Your Honor. The Government feels that para-
graph fifty-eight is bottomed in the facts which came out on the
trial, specifically the testimony came from Lieutenant John Potts in
his estimation was that this conspiracy charged in count one, the
only count that went to trial, involved in his estimations and in his
expert opinion approximately one million marijuana plants. Under
the guidelines, it’s 1B1.3, page 1.16 of the guideline manual, the test
for whether we can include that number of plants in determining
the Defendant’s applicable range is in the case of criminal activity
undertaken in concert with others. Whether or not charged as a
conspiracy, the conduct for which the Defendant would be other-
wise accountable also includes conduct of others in furtherance of
execution of jointly undertaken criminal activity that was reason-
ably foreseeable by the Defendant.
And so it’s a two prong test. Number one, were the actions of
Mr. Clark’s co-conspirators in furtherance of the conspiracy, and
A-6
number two, did Mr. Clark know what they were doing or would
he, could he be found tc have reasonably foreseen about the activ-
ities and marijuana cultivation and growing that his co-conspirators
were undertaking. And so, really in looking at this issue, our posi-
tion is made evident in number fifty-eight, should the Defendant be
responsible for all the drug transactions he was aware of, and num-
ber two, that he should have been reasonably foreseen.
I'd like to break that down into two parts, number one, of what
he was specifically aware of. And it was clear from the trial testi-
mony that he was involved in nine hundred marijuana plants, the
number, approximate number that were seized in 1985. It was clear
from the trial testimony that Phil Coker and he combined and con-
federated and conspired together in growing a marijuana field. It
was Clear from the trial testimony that Bruce Hendry sold marijua-
na on behalf of Donald Clark. It was clear from the trial testimony
that there were a number of seedlings grown in the grow room with
Mr. Bruce Hendry and others. And it was clear from the debriefin-
gs that were conducted after the trial of several individuals that
Donnie Clark supplied Sammy Boyett, Richard Copeland and from
the trial testimony Mr. Whaley and others, and the Government’s
evidence at trial which consisted of the notebook detailing his indi-
vidual sales, and so that category is well established that Mr. Clark
was well aware of, from his own personal dealings, a number of
activities of his co-conspirators.
The next category under 1B1.3 is if he wasn’t aware of some of
these, then what can be attributed to him because he should have
reasonably foreseen what his other growers, other members of the
conspiracy were engaged in. And in that regard, the Court is aware
because the Court took the pleas of Duane and Gary Clark, his
sons, and the trial testimony revealed that he taught them how to
grow marijuana, coached them. And the Court is aware of the trial
A-7
testimony of Bruce Hendry who testified that Donnie Clark advised
him on how to grow, told him about potash and fertilizer and weed
killer and things hike that. And he even discussed floaters with him.
And so it’s not unreasonable to attribute the quantities Bruce
Hendry and the others grew after Mr. Clark got them started,
advised and counseled them.
Phil Coker was another one that the court heard from. And
Coker testified that he was set up in a field, a field that ultimately
didn’t do so well. But there were a number of plants there and what
happened to the very pots that Phil Coker used in his operation;
Bruce Hendry took them over and used them. In 1987, the
Defendant was arrested on a violation of probation offense and
found at the time to be in possession of a small amount of marijua-
na. The grow room was back in operation after having been
destroyed in 1985. And all of these things suggest that he reason-
ably should have foreseen what others who he had originally got
started in with went on to do, including Mark Massey.
The debriefing testimony from Mark Massey was to the effect
that Donald Clark showed him how to build a drying room. And lo
and behold, plans were done made and there was a drying room at
Mark Massey’s property one of the co-conspirators in count one
and a prolific grower in the Manatee County area. So the initial
exposure that the Defendant had was Donald Clark with Bruce
Hendry, Brian Coker, and Duane and Gary Clark and those people
branched off much like in a chain conspiracy. Mr. Clark may not
have known specific links in this chain afterwards, but he reason-
ably should have foreseen what those people who he got started in
this activity were going to do. And that conclusion supported by the
nature of the beast here, everybody was close associates, they knew
what was going on in the area, and we just don’t feel it’s an unrea-
sonable attribution to put the Defendant — burden him with the
Re he
A-8
plants that others grew after he became active in the operation.
THE COURT: Okay. Anything you want to say in rebuttal?
MR. OSTRANDER: Yes, Judge. 1B1.3, is the Parole and
Probation which I first submitted my objections. I objected specif-
ically to the discussion of reasonableness and I notice that it really
wasn’t spoken to in this addendum, but I’d like to pursue that.
In this particular case, Donald Clark pled guilty in 1985 to the
possession of nine hundred plants and that’s what we think should
be attributed to him is the nine hundred plants. Mr. Page just talked
about Phillip Coker growing some plants and Hendry growing
some plants, but the numbers to substantiate the million or the three
hundred thousand are not there. Everybody talks about some plants
and the only evidence that the Government is willing to rely upon
today is the fact that Lieutenant Potts took the stand and said that
he believed the scope of the operation was between nine hundred
and a million, whatever, just not to misquote Mr. Page, but the
statement he just made, but there was no solid evidence or no evi-
dence with the indicia of liability to allow the Court to determine
there was a million plants or three hundred million, but anyway,
nevertheless, it’s important to point out that the defense’s position
is that there was no proof to establish that that many plants had ever
been grown. Getting back to the actual application of 1BI.3 which
allows us to determine whether it was foreseeable for Donald Clark
to — whether he could reasonably have foreseen that the conduct
of his co-conspirators would encompass all these plants, every wit-
ness that took the stand from Phillip Coker to Bruce Hendry to
Huffman, all testified that everything was a secret, they kept their
plots secret, they kept their conspiracy secret. Nobody knew what
anybody else was doing when Donald Clark pled guilty and accept-
ed responsibility for his actions in 1985. There was no proof what-
soever subsequent to that that he was involved with any of these
id
A-9
people in any way. Mr. Page said that when the police went back
there in 1985, a subterfuge, they doesn’t get a search warrant, they
got in and found a grow room, but they didn’t find any growing
seeds, plants, planters, buckets. All the things that they purged dur-
ing the first visit, none of that stuff was present at the present time
despite the fact they want to take the position that this is part of the
ongoing conspiracy.
There were no more plants. There was a small amount of per-
sonal use marijuana present on the property at that point in time.
The only pot or marijuana that should be attributed to Donald Clark
is that nine hundred plants that he was caught with, pled guilty to
in 1985. That was the total extent of his effort in the conspiracy.
Some information has just been given to this Court, though, that
they received from debriefings that I’ ve never heard before and this
is exactly the testimony that I’m saying should not be given the
indicia of reliability, such as, you should rely upon it to establish
this information is factual that these are findings of fact that you
must make at this time. If you attribute to Donald Clark his failed
effort with Phillip Coker, we would concede the point, but beyond
that, there is not the testimony to establish that Donald Clark would
have seen that there would be this many conspiracies, not one con-
spiracy, but many conspiracies. Every one of these individuals was
involved in to their own benefit, not to the benefit of Donald Clark.
The cases say there had to be a conspiracy, that he agreed to that
part of his agreement, that he willfully joined. There is no testimo-
ny he willfully entered into anything. The testimony was he was
indicted in 1985 with nine hundred plants, involved with Phillip
Coker, that was it. The argument that Mr. Page is making that Bruce
Hendry then took the offending buckets and went on further and
grew more pot, it’s a stretch of the imagination to argue that would
be foreseeable to Donald Clark and as such he should be attributed
A-10
with the full fruits of this conspiracy.
THE COURT: Okay.
MR. VAUGHN: Can I add one thing?
THE COURT: Well, really only one attorney is supposed to
make the argument, Mr. Vaughn, but go ahead.
MR. VAUGHN: Your Honor the Government’s own witness
testified that after 1985 that Donald Clark verbally informed them
that he had nothing more to do with the marijuana business and I
believe the testimony was he would not even allow them back on
the ranch. There was no further testimony by any Government wit-
ness that Donald Clark participated in anything after 1985. The
only testimony the Government provided was that Mr. Clark ver-
bally withdrew from the conspiracy after his conviction in 1985.
There was no further testimony since 1985 implicating Mr. Clark.
Like I said, only to the contrary, I believe there was at least
two or three witnesses by the Government who testified that
Donald Clark stated to them at that time unequivocally he was no
longer going to have anything to do with the marijuana business.
No testimony after that to show his involvement in anything.
THE COURT: Okay. Court’s going to defer on that temporar-
ily. Go on to paragraph fifty-nine. It is the firearms.
MR. OSTRANDER: Judge, I filed an objection under the
application of the firearms for Donald Clark such as to raise the
base offense level by two degrees. The initial objection that I made
was based on the fact that Parole and Probation had determined that
the violation of probation in 1985 was part of this conspiracy. And
my main objection there was a factual one, there was no testimony
at any time that this was part of any conspiracy, that in fact, Donald
Clark was arrested in his home with a small quantity of marijuana
to which he also pled guilty and did a State sentence. At the time,
they discovered sixteen weapons on the premises.and I believe the
A-11
argument was made that because the weapons were present, that
this was part of the conspiracy. My objection is to any determina-
tion that this violation of probation and the actions that were a part
of that violation were any sort of this conspiracy, whatsoever, such
that the weapons should not be attributed to Donald Clark through
the conspiracy.
The Government has objected and has taken the notion that
any use of any weapon by any co-conspirators would raise his base
offense level by two degrees or two leveis, I’m sorry, and my objec-
tion is based on the fact that subsequent to the 1985 activity,
Donald Clark was no longer a part of that conspiracy.
THE COURT: What is your response?
MR. FURR: Judge, first of all, I believe the Defendant utilized
a withdrawal defense, defense or argument, which the Court was
persuaded to at least let the Jury take a look at that. I believe there
was an instruction to that effect. The Jury didn’t go with that.
Secondly, as to the firearms, purely and simply, I think there’s two
arguments that apply here. First is the Defendant’s possession of a
firearm during the commission of the conspiracy here which went
on for a number of years. The 1987 violation of probation arrest at
his home was accompanied by, one, the finding of some marijuana
in the house, and t:vo, the finding of several firearms in the house
and I believe a Tech nine which was loaded in his barn in the vicin-
ity of where the grow room was. And you will also recall that was
in °87. We had a witness named, I believe, Raymond King, who
was at the ranch in ’87, he was a tall, thin, dark haired guy. Judge,
I know it’s tough to remember him, but Mr. King testified he was
at the ranch in ’87 and the grow room was being utilized at the
time, and keep in mind, the grow room was about one hundred feet
from his door, now, secondly, so I think he gets attributed to the
firearms for the fact that he possessed them during the commission
A-12
of the offense. And by and in itself, that is enough for the enhance-
ment to be appropriate.
Our second argument would come under the language of the
Otero case which is at 890 Fed. 2nd 366, which was an affirmance
by the Eleventh Circuit of a sentence from this particular Court,
where a sentence enhancement is proper for a co-conspirator’s pos-
session of a firearm, that one, the possessor was charged as a co-
conspirator. Let’s look at the possessor here as being Hendry and
Huffman, make it nice and simple. They were charged with — they
were found with a gun in Glades County, when they were arrested,
they were charged. Two. co-conspirators found to possess firearms
in the furtherance of the conspiracy. They certainly did and they
testified to that effect. Three, the Defendant was a member of the
conspiracy at the time of the firearms possession. He never with-
drew really. This is the Defendant, never withdrew legally, number
one. Number two, the Jury didn’t buy any withdrawal defense
either. He gets the firearms. If there was anything these witnesses
were unanimous about, it was that everybody that participated in
this conspiracy utilized firearms. They utilized firearms because
they spent a lot of time outside. They spent a lot of time in the
woods. And when they were out there, they doubled between
poaching and looking for other places to grow or as in the case of
when Hendry and Huffman were arrested, they are out poaching
and going by and checking on their crop that was in the field at the
same time. So they all used firearms. These were attributed to this
Defendant as well. So either possessed them or his co-conspirators
possessed them, one or the other.
THE COURT: All right. Anything in rebuttal?
MR. OSTRANDER: Yes, Your Honor. Otero also calls for
the foreseeability standard that it was reasonably foreseeable to
the Defendant that the weapons would be used in the furtherance
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of the conspiracy. Though I agree there was substantial testimony
about the fact that these were all back-woodsmen, all country
guys, all hunted and poached and did all that other sort of stuff,
the testimony is just equally substantial they were using the
weapons for poaching which I wouldn’t suggest is in furtherance
of this conspiracy, any conspiracy, unless they’re conspiring to
poach. But my strongest argument, Judge, under Otero, it is not
reasonably foreseeable that Donald Clark who after 1985 had
nothing do with this conspiracy, that any weapons would be used
in furtherance of any conspiracy.
Again, I can only go back to the testimony of every witness,
that every one of these conspiracies was secret, was clandestine.
They kept everything from each other. Sometimes they interwove
their conspiracy, but still kept their sites secret, their plants secret,
everything else secret.
Judge, I would also point out that that Raymond King that Mr.
Furr alluded to testified as did Tim Young that under their visits to
Donald Clark’s farm subsequent to 1985 that they visited a grow
room, not with Donald clock, not under the control of Donald
Clark, but with Duane Clark and others. There was no evidence that
Donald Clark was living at the farm, there was testimony that
Donald Clark was working on other various ranches during various
periods of time which have been considered to be part of that con-
spiracy.
THE COURT: Okay. I'll reserve on that next paragraph. I
think we’re up to —
MR. OSTRANDER: Sixty-one.
THE COURT: Sixty-one, yeah.
MR. OSTRANDER: All right. Judge, ! objected to the Parole
and Probation’s evaluation of the role played by Mr. Clark in this
conspiracy, though they did not consider him a highly culpable
A-14
Defendant, they did not consider him a minimal participant. Under
the circumstances of this case, especially the light of scope as
drawn by the United States Attorneys Office, the Government, of a
million plants. Mr. Clark’s involvement was minimal such that I
believe he should be entitled to a reduction under the sentencing
guidelines. Mr. Clark’s evidence was that he was involved to the
extent of his nine hundred plants, that there was some testimony of
Phillip Coker that he helped him, set up his plants which ultimate-
ly failed. That’s the extent of the testimony involving Donald
Clark. As a result of that, I’m taking the position he is a minimal
participant, especially in light of other Defendants in this case, and
as such, should be given a three level reduction for the fact that he
was a minimal participant.
THE COURT: Okay, response.
MR. FURR: Judge, they’re going for four points off to the
minimal?
THE COURT: Yes, sir, four points.
MR. FURR: According to my reading of the guidelines, that
generally goes to a person's lack of knowledge, not only the scope,
but also the activities of others. \If you review the guidelines, they
say that, one, that should be used infrequently and when you look,
[ believe it’s 3B1.2, it indicates that basically that would be used if
you had a single incident participant with a menial-type role. |
believe they use the indication of a person who might be a courier
on one occasion or might participate and offload a boat on one
occasion or something like that.
Let’s look at what Mr. Clark was. One, he was a big time
grower in his own nght. He taught others to grow. The evidence of
that was from Mr. Phil Coker and Bruce Hendry. He was there over
the years for Bruce Hendry, taught him how to use root tone. | was
going througn my notes this morning; root tone, seal-a-meai bags,
A-15
how to pollinate plants. Additionally, was there when a growing
site to grow the seedlings was needed by Hendry and Timmy Clark.
And he lent his grow room for that to them. All this with a mind
towards distributing these plants later. Additionally, he sold the
product of these plants to Bruce Hendry for Bruce Hendry’s resale.
He’s fortunate that we’re not asking for points. There’s no reason to
ask for points under the circumstances. I’m just leveling it at noth-
ing, but it certainly is not a minimal participant and certainly not a
minor participant.
THE COURT: Anything you want to say in rebuttal?
MR. OSTRANDER: Yes, Judge. In 1985, they found nine
hundred plants on his premises. That was it. Nine hundred plants.
After that, there is no record of them picking up anything but a min-
imum personal use quantity in 1987, yet they paraded their wit-
nesses in here to talk about the hundreds of thousands of dollars
that they had hidden in tubes and on their property and the proper-
ty. The case law said that you’re allowed to look at the role of the
Defendant within the entire scope of the transaction. One of the
things Mr. Furr just said, based on his knowledge of the — and
scope of the conspiracy, there was no evidence or testimony what-
soever that Donald Clark knew or understood the scope of this
entire transaction. | don’t agree there was three hundred thousand
or a million plants, but clearly the nine hundred plants that Mr.
Clark was involved in in 1985 and I would assume is the determi-
nation point for the conspiracy, at least in the mind of the
Government, a minimal participant, especially if nothing further
occurred from that date forward.
THE COURT: Okay. Reserve on that. Rather defer on that.
Next one is sixty-eight. That’s on the estimated amount of marijua-
na on weight.
MR. OSTRANDER: Judge, my recollection from seeing the
— me le
A-16
original police report and I believe this came in in testimony was
that they talked about between a quarter and a half ounce. Now the |
PSR has shown it —
THE COURT: You mean pound.
MR. OSTRANDER: Quarter and half a pound and I’m just
taking that, with that I made that objection, the grander scheme of
things. I don’t think it’s going to change anything as far as the sen-
tence goes, but I wanted to put everything possible on the record as
to any objection or inaccuracy.
THE COURT: Where’s Probation?
THE PROBATION OFFICER: Here, Your Honor.
THE COURT: You heard the objection that actually the infor-
mation should be ounces rather than pounds. What's the position of
Probation on that point?
THE PROBATION OFFICER: Your Honor, that information
was obtained from a Manatee County offense report, that’s the only
information that we have to go on and | reviewed that report again
to make sure it wasn’t any other and it reflects it being pounds,
Your Honor.
THE COURT: What says the Government on that point?
MR. FURR: I believe this is what the testimony was at trial,
but I don’t want to swear to it because it was not the highlight of
the trial, | don’t know.
THE COURT: Well, Probation has taken it from the report.
What if any persuasive evidence do you have to the contrary?
MR. OSTRANDER: Judge, only from seeing the Sheriff’s
report and I looked for it in my own file, | don’t have a copy of it
available. Again, I was just pointing it out to try to clarify it.
THE COURT: I understand. I can't clarify it if you don’t have
something to show me that would point out that there is in fact a
discrepancy.
A-17
MR. OSTRANDER: I understand, I can’t dispute that.
THE COURT: Well, Probation has provided a copy of the
report, is that correct?
THE PROBATION OFFICER: Yes, Your Honor.
THE COURT: The report shows pounds, correct?
THE PROBATION OFFICER: Yes, Your Honor.
THE COURT: Well, unless you have something else, Mr.
Ostrander, I really —
MR. OSTRANDER: I withdraw my objection.
THE COURT: Okay, noted. All right. Next one is one hun-
dred, paragraph one hundred.
MR. OSTRANDER: Judge, I objected to that again from the
testimony you have heard at trial. There was no evidence that
Donald Clark actually generated income or revenue that he accept-
ed from the growing of marijuana. I know from the pre-sentence
investigation meeting with Ms. Lassiter that Mr. Clark clearly
established that his sole source of income was farming revenue and
that he was a substantial, successful farmer through the *70’s and
*80’s to present and so we simply objected to the characterization
that he received part of his income from cultivation of marijuana.
THE COURT: Response from the Government.
MR. FURR: Judge, in 1985, I believe when he was arrested,
he spoke with Lieutenant Potts. First of all at that time, there were
some books found in his house which he indicated were his and we
utilized them at trial. It showed, one, how to grow marijuana on
various days within this diary-type book. Different substances
being placed on marijuana crops and different location and it talks
about that within the book which showed it was a substantial oper-
ation, and two, there were in another book, there was a ledger for
both Afghan and Sativa-type marijuana with quantities sold to indi-
viduals which generated particular amounts of money and it was a
A-18
lot of money. I don’t know how much it was, but it was in the thou-
sands of dollars that were discussed and that certainly is a signifi-
cant amount of money.
Additionally, the agent testified at trial, Mr. Potts, that when he
arrested Mr. Clark in ’85, they talked after the arrest and Mr. Clark
indicated to him that he had been surprised or been lucky that he
hadn’t been caught. He had been growing marijuana for a long
time, discussed how he grew it in terms of cutting things down in
the swamps, everything else would grow at the same time to make
it tougher to spot and that he had made a lot of money doing it and
that he made enough to pay for the ranch on a yearly basis by doing
that. Whether he utilized the money for that or not, I don’t know.
But the evidence at trial certainly was he made a lot of money in
the marijuana business.
THE COURT: Any rebuttal?
MR. OSTRANDER: Yes, Judge, there was no proof that those
books belonged to Donald Clark at the time of the arrest in 1985 in
the search. The blanket question was asked of Donald Clark
whether the things in the house belonged to him as a blanket state-
ment and he simply referred to the house as yes. Now the
Government is coming in and specifically trying to use that state-
ment to show that Donald Clark admitted to owning those books.
There is no evidence, no testimony and in fact, to that, Detective
Livingston was drilled extensively, extensively to his knowledge of
who actually owned the books or if anybody knew whose hand-
writing it was and no testimony was given, in fact, he said he could
not say conclusively it was his books, so the evidence is not con-
clusive as to that amount.
THE COURT: Anything else?
MR. OSTRANDER: May I have a second, Your Honor?
THE COURT: Yes, you may.
A-19
MR. OSTRANDER: Well, I can respond to you, go ahead.
MR. FURR: If I could respond for a moment, Judge, if you
recall, the books have virtually everybody else that was associated
with this thing in it listed by name. Mr. Clark was not listed in there
as one of purchasers ever for any of that marijuana. Secondly, the
fact that he had the books, that he had the book on how to grow is
just evidence which supports the testimony of other witnesses such
as Mr. Hendry who after the arrest in 1985, sold twenty-five or thir-
ty additional pounds cf marijuana for Mr. Clark.
MR. VAUGHN: If I may.
THE COURT: Yes, rebuttal.
MR. VAUGHN: Your Honor, even their own witness testified
that the books were in two different people’s handwriting, so |
don’t know how they can attribute these books to Donald Clark.
Their own witness testified it was two different people who wrote
in the two different books. I don’t know how they can contend now
both those books were Donnie Clark’s when their own witness tes-
tified there were two different handwritings.
THE COURT: Okay. Is that it on the argument on the objec-
tions, Mr. Ostrander?
MR. OSTRANDER: Judge, the only other thing I would ask is
that Sergeant Potts or Lieutenant Potts took a statement or at least
wrote a statement on a police report during the arrest in 1985 that
said that Donald Clark says lease payments with money from drugs.
I don’t recall that coming in as testimony and I’m —you know,
that him giving that testimony during the scope of the trial. Again,
I can only point out that you know the testimony is not and the evi-
dence is not sufficient to allow you to determine that fact, especial-
ly based on if the only evidence they have is the books. In fact, they
had plenty of witnesses who could have testified if they wanted to
as to who those people in the books are, they never did, they just
A-20
left it hanging there, it’s an unconclusive conclusion that they want
the Court to turn into a fact.
THE COURT: Anything else, Mr. Ostrander?
MR. VAUGHN: Can I add one final comment?
THE COURT: Yes.
MR. VAUGHN: As to quantity of plants, I recall the testimo-
ny, as you recall, we well objected at the time when the
Government put a witness on, they put the charts on and their own
witness testified that on cross examination that more than half of
the marijuana fields that he testified about and were indicated on
those charts not only had, number one, he testified as far as he knew
none of the marijuana fields had anything to do with Donald Clark.
He also testified that at least half of those marijuana fields had
nothing to do with anybody involved in this conspiracy. So when
the Government’s calculating their amounts, I would like the Judge
to recall that testimony.
THE COURT: Okay. Anything else now from the Defendant
as to these objections?
MR. VAUGHN: No, Your Honor.
THE COURT: Okay. Anything further from the Government?
MR. FURR: No.
THE COURT: All right. The Court has considered your argu-
ments and the Court has examined these objections and listened to
what you have had to say this morning. This Court presided at the
trial. The Defendant took the position that he was not guilty at the
trial. Various of these items that you have listed, in fact, all of them
except the one that you have withdrawn with regard to paragraph
Sixty-eight which you concede clearly raised, if not direct evi-
dence, an inference at the time of the trial to substantiate the posi-
tion that’s been taken by the United States Probation Department.
This has not been an easy pre-sentence report to prepare. The Court
ee
A-21
wants to commend the Probation Department, this has been a very
thorough, meticulous accumulation of the facts. The preparation of
the inferences that arose based upon the evidence at the trial, infer-
ences upon which the Jury had the right to rely and based upon the
Jury’s verdict of guilt, the Jury probably did rely and the applica-
bility of the guidelines is just night on in this case. I overrule the
objections on paragraph fifty-six, already I think I’ve said that.
Paragraph fifty-eight, Defendant’s objection is overruled.
Paragraph fifty-nine relative to respectively the plants, the firearms,
there’s more than enough evidence. Paragraph sixty-one is over-
ruled. It’s just absolutely ludicrous to consider the man minimal.
The Defendant withdraws paragraph sixty-eight with regard to the
issue of pounds based upon the information that’s in the Probation
Department’s file and the Defendant’s inability to offer anv oppos-
ing evidence. Paragraph one hundred. It is certainly clear based
upon the evidence with regard to the cultivation of marijuana and
income derived therefrom and the book that has been talked about
in such great detail, the record-keeping, rather, the fact that it’s in
more than one handwriting and not established it is Mr. Clark’s is
immaterial. The evidence was found on his premises, those premis-
es are under his control and responsibility, it’s not even a close call
with regard to that.
This Court therefore overrules all of the objections of the
Defendant and the one that has been withdrawn, the Defendant has
withdrawn, therefore the Court adopts the factual statements con-
tained in the pre-sentence report, and as to which there is no objec-
tion and as to the controverted factual statement, the Court adopts
the position of Probation as stated in the addedum. Therefore, the
Court determines that the applicable guidelines are total offense
level forty-three, criminal history category Roman Numeral |, life
imprisonment, five years supervised release, zero restitution, twen-
A-22
ty-five thousand to four million dollars fine, plus cost of imprison-
ment/supervision, fifty dollars special assessment. Do you know of
any reason why the Court should not now proceed with imposition
of sentence, Mr. Ostrander?
MR. OSTRANDER: No.
THE COURT: Mr. Furr?
MR. FURR: No, ma’am.
THE COURT: Do you wish to make a statement or present any
information in mitigation of sentence, Mr. Ostrander?
MR. OSTRANDER: Yes, Your Honor.
THE COURT: Go ahead.
MR. OSTRANDER: Judge, in closing arguments, Mr. Vaughn
told the Jury that Donald Clark came and took this trial risk because
he believed in this system and he felt like he was innocent. And
that’s why we went to trial, that’s why we spent a month of the
Court’s time in trying to show the Court that Mr. Clark was not
guilty of any conspiracy. Mr. Clark was involved in growing mari-
juana in 1985, he pled guilty to those charges when he had a chance
to go to trial. In 1987, he pled guilty again to a violation of proba-
tion when he could have challenged that certainly as a subterfuge
because he felt he had paid his penalties to society. Clearly, we’ ve
got double jeopardy because we want to establish some certwaty. I
understand that this is not double jeopardy as we commonly know
it, but clearly this is double jeopardy in the fact by pleading guilty
he certainly put the gun in the hand of the United States
Government so they could put a bullet in his head today. Mr. Clark
admitted and lived up to everything that he did back then, he
accepted his responsibility, he came to trial to prove that he was not
a conspirator, not that he didn’t cultivate marijuana, he admitted
that he did that and he took his punishment for that. He’s here today
because he took that risk and I would suggest even though we’re
—
A-23
talking about how much the Jury knew, it’s clear in the articles in
the paper the Jury had no idea of what a conspiracy was when they
walked out of here. Mr. Clark is looking at a life sentence without
Parole based on something that he did in 1985 prior to the enact-
ment of any Sentencing Guideline in 1984, Sentencing Reform Act
that passed, but there were no guidelines. 1987, November, they
kicked in and applied and evolved to the stage we are now. There’s
no way Donald Clark could have ever known back in 1985 when
he was putting his hands in the State of Florida he was going to be
looking at the possibility of going to prison for the rest of his life
by pleading guilty for an act he committed back in 1985. Certainly
I ask the Court for leniency and mercy. Donald Clark is a good
man. I have gotten to know him over these last two years. I may
have questioned his judgment as to how he’s handled some things,
but I really believe that he believed and he kept asking me how can
this be happening, and having studied law, I try to explain how it
happened, but it doesn’t make sense to me even as we stand here
today.
Judge, a lot of people have written letters about Donnie Clark.
He’s really a hard-working person, he’s always been honest. His
visit with the underworld of growing marijuana is his only straying
from the straight and narrow. I heard this just early this morning,
you showing mercy to people that have had severe sentences
involving personal injury or violence to an earlier fella here and
you gave the guy a break. These bank robbers are looking at five
years in prison. Donald Clark is looking at a minimum mandatory
of life imprisonment because in 1985 he grew nine hundred pot
plants when he did his punishment with the State of Florida. I only
want it on the record, I can only state that Mr. Clark does not
deserve this, that there’s a better way, the Government is all here
with their agents, they want the big deal sought so they can go back
A-24
to the other twenty-six people who pled and say now, look, this is
what’s going to happen to you. Donnie Clark’s going to prison for
the rest of his life, you better talk, tell the truth, better show us the
money, you better show us the pot. Donald Clark became convict-
ed and you can give him a sentence other than life in prison. That’s
what we ask you to do.
THE COURT: Mr. Vaughn, do you wish to say anything
before I hear from Mr. Clark.
MR. VAUGHN: No, Your Honor.
THE COURT: All right. Mr. Clark, sir.
THE DEFENDANT: No, ma’am.
THE COURT: Anything the Government wishes to say in
aggravation or mitigation?
MR. FURR: Just briefly. It’s obvious what Mr. Clark is going
to receive in terms of a sentence. However, in response to the argu-
ment by counsel just a couple minutes ago, you know, older people
when they’re around kids owe them something in terms of their
conduct. Look what’s happened to this man. The little community
out in the middle of nowhere, Manatee County, seems like half the
people there, half the young men there are in jail and why are they
in jail? They're in jail because they got into the marijuana business,
that was the thing to do. And the man over here is one of people that
made it the thing to do. His two sons are looking at having their
lives destroyed because of this. He’s got a daughter-in-law going to
jail for this. Probably every friend of his kids are tied up in this.
When these kids, little more than kids, came to him and asked him
things, it wasn’t get out of the marijuana business, it was how you
can do it better. This stuff was known as Clark bud when they were
in high school. He owes them an apology for how he lived his life.
The Government doesn’t owe him anything. I feel sorry he’s going
jail for as long as he is, I really do. At the same time, I feel sorry
<—e ——T
A-25
for each one of the people in jail, the ones that are going to jail and
that’s not very pleasant. They all have family, they all had some-
thing they wanted to do in life. But instead, a littke community out
there has been basically destroyed because of this. This is one of
the reasons right over here. That’s all I have to say.
MR. VAUGHN: I have one brief rebuttal, Your Honor. The
reason Donald Clark is going to jail is because of his sons, it’s not
because his sons are going to jail because of Donald Clark. All the
evidence that the Government put on had Duane Clark and his
other son in the marijuana business prior to any testimony that
Donald Clark was in the marijuana business. All the other people
that these so-called innocent children that Mr. Clark helped suc-
cumb to the evils of growing marijuana, that was testimony
throughout the trial, they were in the marijuana business before
Donald Clark was in the marijuana business and they were in the
marijuana business many years after Donald Clark. If these people
weren't in the marijuana business, the Government wouldn’t be
here today.
Mr. Clark served his sentence back in 1985 because all the
testimony says Donald Clark had nothing to do with marijuana
after, then he told them that he didn’t even want them on the ranch
anymore. That’s straight out testimony of their witnesses, Your
Honor. Donald Clark is being punished because he went to trial.
These other people are cutting deals, anything from probation, I
think the maximum sentence is twelve years that I’ ve heard about.
Donald Clark, it’s an insult to me as an attorney and really makes
me question the profession. We’re here to try cases, Your Honor,
not to punish somebody for exercising their right to go in to tnal.
That goes against every reason why you're here. why we’re here
and why the Defendant is here. We're here to go to tnal, Judge,
that’s our Constitutional Right, and it’s become a system now
Smear}
A-26
where you are punished if you go to trial. You're going to get life
in prison instead of probation or five years if you exercise your
right to go to trial. It doesn’t matter whether you believe you’re
innocent, that doesn’t matter. The bottom line is you go to trial,
you're going to be punished, not for the crime, but for going to
trial. Real people in this case, the real people who were the major
players, the Mark Masseys, the Duane Clarks or whoever was
involved, the real people in this case, Your Honor, are going to get
a slap on the wrists according to what Donald Clark’s going to get.
It wasn’t Donald Clark that put his sons in jail, that’s the other way
around and that’s because he’s exercising his Constitutional Right
to go to trial because in his heart to this day, I can tell the Court
that he believes he’s innocent of this conspiracy.
THE COURT: Okay. Now, Ladies and Gentlemen, I have been
confronted as have other Judges been confronted with a number of
people involved in drug activities in the last past several years in
particular. This Court has had the responsibility and the privilege of
being a judicial officer for over eighteen years. It is never any great
pleasure for this Court to sentence anyone and it isn’t. And this
Court does have a responsibility to fulfill its duty and to make some
observation or some comments.
Mr. Clark, this is not going to be long because you’re getting
a heavy sentence. During the course of the trial, | want you to know
that I told your attorneys more than one occasion that it needed to
be explained to you, and I think I even took it upon myself to
explain to you the dual jurisdiction concept, that the State of
Florida was separate and apart from the United States of America,
and that the commission of a crime could be a crime against the
State of Florida and a separate and distinct prosecutable crime
against the United States of America. Whether you agree with it or
not, whether you think it’s mght or wrong, that’s the law.
A-27
Now, Mr. Ostrander has alluded to double jeopardy. I don’t
want you to misunderstand double jeopardy. It doesn’t apply when
we're talking about two separate jurisdictions. Further, Mr. Vaughn
has talked about the exercise of Constitutional Rights and being
punished for going to trial. You have an absolute right as does
everybody who is charged with a crime to go to trial. When people
go to trial, the Court hears things that it wouldn’t hear normally at
the time of a change of piea. One of the considerations that people
have when they change a plea is to make sure that the Judge does-
n't hear some of the things that the Judge will hear if a case goes to
trial. The Judge hears the same things that the Jury hears. You had
a Jury trial, you had twelve people from the community who found
you guilty of this conspiracy, based upon the evidence that they
heard, reasonable inferences that they drew and the law as instruct-
ed to them by this Court. So, your right to trial established your
guilt. You took the position that you were not guilty. The accep-
tance of responsibility is something which ycu have not yet done.
There are a lot of people confronted with a lot of crimes that think
in their heart they shouldn’t be convicted of because they think that
that which they were being charged with should not be a crime, but
it is a crime. And they get charged with it and they either have to
admit their guilt, whether they like it or not. I’ve had some of that
within the last week in front of me in this very Courtroom, or they
go to trial and say, you know, I’m not guilty, in my heart I feel I’m
not guilty. When a Court has to instruct the Jury and they apply the
facts, apply the law to the facts, conviction may occur. That’s what
happened in your case.
Mr. Furr has talked about the example that you set in the com-
munity. Well, only you in your own heart know what kind of an
example you set in this community and these other peopie that are
going to be sentenced by this Court, whatever sentences they get
A-28
for whatever they did in return for substantial assistance, the bene-
fits they will be deriving will be because, one, they accepted
responsibility, and two, they substantially assisted the Government.
Now that’s the choice they made. You made a choice, they made a
choice. The choices were made to get involved in the rug activity
by you and by them. These guidelines are harsh. But let me tell you,
there are even more harsh guidelines coming. You will see before
this year’s out in various places the death penalty being sought for
people involved in activities similar to yours. This country is per-
haps going overboard, but out of frustration with this drug problem.
And you’re just a — you're feeling the brunt of the frustration of
the people in this country and they’re telling the Courts, do it, put
them away. Don’t have any misunderstanding about that. These
guidelines were passed to take discretion away from the Court and
they're praised in a number of areas.
Mr. Ostrander points out the bank robberies this morning, peo-
ple who pled to the bank robberies and I don’t have any great com-
fort about what the guidelines are doing on the bank robberies,
they’re too light. Those sentences are appalling to me, but Judges
don’t make laws, Congress makes laws. Congress says this fits the
crime. I can’t question the wisdom of Congress.
The Court having asked the Defendant why judgment should
not now be pronounced and no cause to the contrary appearing to
the Court and the Defendant and his attorney having made a state-
ment on his behalf and the Court having reviewed the pre-sentence
report and pursuant to the Sentencing Reform Act of 1984, it is the
judgment of the Court that the Defendant Donald Clark is hereby
committed to the custody of the Bureau of Prisons to be imprisoned
for a term of life. If released from imprisonment, the Defendant’s
placed on supervised release for a term of five years. While on
supervised release, the Defendant shall comply with the standard
A-29
conditions adopted by the Court in the Middle District of Florida.
The Court finds the Defendant does not have the ability, the finan-
cial ability to pay a fine or other costs. It is further ordered that the
Defendant shall pay the United States a special assessment of fifty
dollars which shall be due immediately. The Court finds no reason
to depart from the sentence called for by application of the guide-
lines inasmuch as the facts as found are of the kind contemplated
by the Sentencing Commission and the guidelines require a manda-
tory sentence of life.
The Court having pronounced sentence, does counsel for the
Defendant or for the Government have any objections to the sen-
tence and the manner in which this Court pronounced sentence
other than those previously stated for the record, :4r. Ostrander?
MR. OSTRANDER: No, Your Honor.
THE COURT: Mr. Furr?
MR. FURR: No, ma’am.
THE COURT: The Defendant is herby remanded for service of
sentence. You are now advised of your right to appeal from this
sentence within ten days from this date. Failure to appeal within the
ten day period shall be a waiver of your right to appeal. The
Government may file an appeal from this sentence. You’re also
advised that you’re entitled to assistance of Counsel in taking an
appeal. If unable to afford a lawyer, one will be provided for you.
There’s a further acknowledgement of right to appealment because
of trial.
Donald Clark, you have been advised by the Court of your
right to appeal and you understand you will waive the right to
appeal! in this case unless you file the notice of appeal within ten
days from this date, the date of the entry of the judgment, today,
November 4, 1991, ten days from today. You further understand
A-30
that you can appeal through your attorney or by notifying person
ally the Clerk of the Court of your desire to appeal in sufficient time
to allow the Clerk to file the notice before the expiration of the
aforementioned ten day period. You have been advised of your
right to be represented by counsel for appeal and understand that
you may have counsel appointed to represent you on appeal at no
cost to you if you're unable to afford counsel. You further acknow!
edge that you read this and you understand it and that [ have read it
to you. Madarn Clerk, Mr. Ostrander, Mr. Clark has to sign it.
Mr. Ostrander, what are you recommending, requesting for
recommendation with regard to site of incarceration. I don’t think
there's a choice, I think they have to send him to Marianna, further
from that, to Colorado. I’m not sure. What do you know, Mr. Furr?
MR. FURR: I don’t know.
THE COURT: What does Probation know about that?
THE PROBATION OFFICER: I’m sorry, Your Honor, I have
no knowledge of that.
THE COURT: You have no knowledge. What are you requesting?
MR. OSTRANDER: I[ don’t have a
THE COURT: I will—
MR. OSTRANDER: Marianna.
THE COURT: I will request Marianna, ! don’t think he’s going
to get it.
MR. OSTRANDER: Judge, at this time, I need to move the
Court for permission for Mr. Clark to have a visit with his grand-
children, if that’s possible. They, [ guess, contact Sarasota, so we
need an order from this Court, although I think he’s here now, so if
that’s —
THE COURT: I don’t think, I don’t know whether they can
accommodate the children downstairs in the holding cell. How
many grandchildren we talking about, off the top of my head’
A-31
MR. OSTRANDER: Six of them. We can do it any way to
accommodate.
THE COURT: Marshal Service, please let me know what they
can do with regard fo it. I don’t know what their demands are down
there for accommodation.
THE MARSHAL: We have all the cells full this morning,
Your Honor.
THE COURT: Sounds bad. They may, we may have to see
about getting an order to direct Sarasota to assist us with regard to
this. If you want to prepare an order, Tom, go down and see Glen
Davis who is in charge of this, tell me what I need to sign. I'll be
happy to sign it.
MR. OSTRANDER: Okay.
THE COURT: All right. All right. And with regard to anything
else with regard to Mr. Clark, I assume that you want to be able to
pursue whatever you wish to pursue in prison academically, voca-
tionally, you should be evaluated, I assume, you want that?
THE DEFENDANT: Yes, ma’am. >
THE COURT: Anything else in the way of special requests,
Mr. Ostrander?
MR. OSTRANDER: No.
THE COURT: Mr. Clark?
THE DEFENDANT: No.
THE COURT: Mr. Furr, Mr. Page”?
MR. FURR: No.
THE COURT: Mr. Clark, this doesn’t give me any great plea-
sure. I know that is no consolation to you. I want you to know |
don’t enjoy it. You’re excused.
(Thereupon, the proceedings were concluded.
STATE OF FLORIDA
A-32
COUNTY OF HILLSBOROUGH
I, CLAUDIA M. FRY, Official Court Reporter for the United States
District Court, Middle District, Tampa,
DO HEREBY CERTIFY, that I was authorized to and did, through
use of Computer Aided Transcription, report in shorthand the pro-
ceedings and evidence in the above-styled cause, as stated in the
caption hereto, and that the foregoing pages numbered | to 47,
inclusive, constitute a true and correct transcription of my short-
hand report of said proceedings and evidence.
IN WITNESS WHEREOF I have hereunto set my hand in the City
of Tampa, County of Hillsborough, State of Florida, this 4th day of
February, 1992.
CLAUDIA M. FRY, Official Court Reporter
By
CLAUDIA M. FRY OFFICIAL U. S. COURT REPORTER
vt
B-1
Exhibit B
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA )
)
)
V. ) Docket No. 90-175-CR-T-17(C)
DONALD CLARK )
Prepared For: The Honorable Elizabeth A.
Kovachevich United States
District Judge
Prepared By: Pamela D. Lassiter, United States
Probation Officer
813/228-2901 (Tampa)
Assistant United States Attorney, Defense Counsel:
Walter Furr Thomas Ostrander (Retained)
Room 410, 500 Zack Street 1206 Manatee Avenue West
Tampa, FL 33602 (813) 225-7300 Bradenton, FL 34205 (813) 746-1167
Sentencing Date: November 4, 1991, at 9:30 a.m.
Offense of Conviction: 21 U.S.C. § 846, Count One:
Conspiracy to Manufacture,
Distribute and Possess with Intent to
Manufacture and Distribute 1,000 or
More Marijuana Plants, a class A
felony.
Mandatory Minimum Applies:
Plea or Verdict:
Date of Arrest
Release Status:
Identifying Data:
Social Security No.: 262-68-0916
U.S. Marshal No.: 11 808-018
FBI No.: 47 230 TI
Address: P.O. Box 206
Myakka City, FL
Detainers:
RE: DONALD CLARK
Codefendants:
MARK DAVID MASSEY
DUANE CLARK
B-2
(X) Yes or ( ) No
Found guilty of Count One on June
21, 1991; adjudicated guilty.
July 24, 1990.
Detained in custody since July 24, 1990
Date of Birth: i 1/08/40 (Age 50)
Race: White Sex: Male
Citizenship: United States
Dependents: None
Education: High School
None unknown
Pled guilty to count one of the
Indictment on May 16 1991.
Sentencing is scheduled for
November 15, 1991 at 9:30 a.m.
Pled guilty to count one of the
Indictment on May 16 1991.
Sentencing is scheduled for
November 15, 1991 at 9:30 a.m.
B-3
DANIEL GODWIN Pled guilty to count one of the
Indictment on May 16, 1991.
Sentencing is scheduled for
November 15, 1991 at 9:30 a.m.
TIMOTHY KAY YOUNG, JR. Pled guilty to counts one and thirty-
nine of the Indictment on May 16,
1991. Sentencing is scheduled for
November 15, 1991 at 9:30 a.m.
BRYAN COKER Pled guilty to count one of the
Indictment March 1, 1991.
Sentencing is scheduled for October
18, 1991 at 9:30 a.m.
DAVID BRYAN ALDAY Pled guilty to count one of the
Indictment on May 16, 1991.
Sentencing is scheduled for
November 15, 1991, at 9:30 a.m.
GLEN GAVEL Pled guilty to count one of the
Indictment on May 28, 1991.
Sentencing is scheduled for
November 15, 1991 at 9:30 a.m.
EARL C. NESS Pled guilty to count one of the a/k/a
TREY NESS Indictment on May 23, 1991.
Sentencing is scheduled for
November 15, 1991, at 9:30 a.m.
LUKE BRINDLE
KENNETH HARWICK
BUCKLIN GODWIN
RE: DONALD CLARK
Codefendants: (Continued)
GARY CLARK
BOBBY ROYCE MADDOX
RODNEY TEUTON
B-4
Pled guilty to count one of the
Indictment on May 20, 1991.
Sentencing is scheduled for January
17, 1992 at 9:30 a.m.
Pled guilty to count one of the
Indictment on May 28, 1991.
Sentencing is scheduled for
November 15, 1991 at 9:30 a.m.
Pled guilty to count one of the
Indictment May 16, 1991. Sentencing
is scheduled for November 15, 1991
at 9:30 a.m.
Pled guilty to count one of the
Indictment on May 16, 1991.
Sentencing is scheduled for
November 15, 1991 at 9:30 a.m.
Pled guilty to count one of the
Indictment May 20, 1991. Sentencing
is scheduled for November 15, 1991
at 9:30 a.m.
Pled guilty to count one of the
Indictment on May 23, 1991.
Sentencing is scheduled for
ARTHUR NESS
PHILLIP HARRIS
MARVIN BENTLY
STEVEN ARBUCKLE
JUDY CLARK
ROBERT ARBUCKLE
B-5
November 15, 1991 at 9:30 a.m.
Pled guilty to count one of the
Indictment on May 28, 1991.
Sentencing is scheduled for
November 15, 1991 at 9:30 a.m.
Pled guilty to count one of the
Indictment on May 28, 1991.
Sentencing is scheduled for
November 15, 1991 at 9:30 a.m.
Pled guilty to count one of the
Indictment on May 23, 1991.
Sentencing is scheduled for
November 15, 1991 at 9:30 a.m
Pled guilty to count thirty of the
Indictment on May |, 1991
Sentencing is scheduled for
November 15, 1991 at 9:30 a.m.
Pled guilty to count one of the
Indictment on May 22, 1991.
Sentencing is scheduled for
November 15, 1991 at 9:30 a.m.
Pled guilty to count thirty of the
Indictment on May |, 1991
Sentencing is scheduled for
November 15, 1991 at 9:30 a.m.
TRACEY SHIRLING
RE: DONALD CLARK
Codefendants: (Continued)
KAYUS HARWICK
MATT GODWIN
WILLIAM OWEN BARTRUFF
ANTHONY CHARLES LEE
JACK BENTLEY, JR.
B-6
Pled guilty to count one of the
Indictment on May 22, 1991.
Sentencing is scheduled for
November 15, 1991 at 9:30 a.m.
Pled guilty to count one of the
indictment on May 23, 1991
Sentencing is scheduled for
November 15, 1991 at 9:30 a.m.
Pled guilty to count one of the
Indictment on May 16, 1991.
Sentencing is scheduled for
November 15, 1991 at 9:30 a.m.
Pled guilty to count one of the
Indictment on May 23, 1991.
Sentencing is scheduled for
November 15, 1991 at 9:30 a.m.
Pled guilty to count one of the
Indictment on May 23, 1991.
Sentencing is scheduled for
November 15, 1991 at 9:30 a.m.
Pled guilty to count one of the
Indictment on May 1, 1991.
Sentencing is scheduled for
than Neabivalial
B-7
November 15, 1991 at 9:30 a.m.
ED LAST NAME UNKNOWN Pending arrest.
Related Cases: See criminai history section.
Co-Offenders:
91-67-CR-T-1 7(B)
GRADON WILGUS Pled guilty to count one of the
Indictment on April 23, 1991.
Sentencing is scheduled for
November 15, 1991 at 9:30 a.m.
RE: CLARK, DONALD
PART A. THE OFFENSE
Charges and Convictions
1. A 39-count Indictment was filed in the Middle District of Florida on
July 20, 1990. MARK DAVID MASSEY, DUANE CLARK, DANIEL
GODWIN, TIMOTHY KAY YOUNG, JR., BRYAN COKER, DAVID
BRYAN ALDAY, GLEN GAVEL, EARL C. NESS a/k/a TREY NESS,
LUKE BRINDLE, KENNETH HARWICK, BUCKLIN GODWIN,
GARY CLARK, BOBBY ROYCE MADDOX, RODNEY TEUTON,
ARTHUR NESS, PHILLIP HARRIS, MARVIN BENTLY, STEVEN
ARBUCKLE, JUDY CLARK, ROBERT ARBUCKLE, TRACEY
SHIRLING, KAYUS HARWICK, MATT GODWIN, WILLIAM
OWEN BARTRUFF, ANTHONY CHARLES LEE, JACK BENTLEY
RICHEY, JR., and ED LAST NAME UNKNOWN (LNDU), are charged
in count one of the Indictment with conspiracy to manufacture, distribute,
B-%
and possess with intent to manufacture distribute | ,000 or more marijuana
plants from about 1981 through the date of the Indictment, July 20, 1990,
in violation of 21 U.S.C. § 846
2. Counts two and three charged TIMOTHY KAY YOUNG, JR.,
GLEN GAVEL, and ANTHONY CHARLES LEE from the fall of 1986
through the spring of 1987, with aiding and abetting in the possession with
intent to manufacture and distribute 100 or more marijuana plants, and
maintaining property located in the vicinity of State Road 64 and Duette
Road for the purpose of manufacturing marijuana, in violation of 2] U.S.C
8§ 841, 856 and 18 U.S.C. § 2
3. Count four charged TIMOTHY KAY YOUNG, JR., BRYAN
COKER, and GLEN GAVEL, from the spring of 1987 through the fall of
1987, with aiding and abetting in the possession with intent to manufacture
and distribute 100 or more marijuana plants (approximately | 657), in vio-
lation of 21 U.S.C. § 841, and 18 U.S.C. 32
4. Count five charged TIMOTHY KAY YOUNG, JR., BRYAN
COKER, GLEN GAVEL AND EARL C. NESS, a/k/a TREY NESS,
with maintaining property located in the vicinity of School House Bay in
Manatee County for the purpose of manufacturing marijuana around April
1987, in violation of 21 U.S.C. § 856 and 18 U.S.C. § 2.
5. Counts six and seven charged DANIEL GODWIN, TIMOTHY
KAY YOUNG, JR., BRYAN COKER, DAVID BRYAN ALDAY, LUKE
BRINDLE, and JACK BENTLEY RICHEY, JR., from about 1987
through 1988, with aiding and abetting in the possession with intent to man-
ufacture and distribute 100 or more manjuana plants (approximately
5,000), and maintaining property located in the vicinity of Ft. Green Road
in Hardee County, Flomda for the purpose of manufactumng marjuana, in
B-9
violation of 21 U.S.C. §§ 841 and 856, and 18 U.S.C. § 2.
6. Counts eight and nine charged DANIEL GODWIN and RODNEY
TEUTON, in 1987, with aiding and abetting in the possession with intent
to manufacture and distribute 150 or more marijuana plants (approximate-
ly 150), and maintaining property located in the vicinity of Myakka State
Park for the purpose of manufacturing marijuana, in violation of 21
U.S.C.§§ 841 and 856, and 18 U.S.C. § 2.
7. Counts ten and eleven charged MARK DAVID MASSEY and
DUANE CLARK, from an unknown date to about August 18, 1988, with
aiding and abetting in the possession with intent to manufacture and dis-
tribute 100 or more marijuana plants (approximateiy 976), and maintaining
property located in the vicinity west of Interstate 75 and Buckeye Road for
the purpose of manufacturing marijuana, in violation of 21 U.S.C.§§ 841,
856 and 18 U.S.C. § 2.
8. Counts twelve and thirteen charged MARK DAVID MASSEY,
DUANE CLARK, and GARY CLARK, from an unknown date continu-
ing until around November 16, 1988, with aiding and abetting in the pos-
session with intent to manufacture and distribute 100 or more marijuana
plants (approximately 820 pounds of marijuana plants), and maintaining
property located in the vicinity of Bullfrog Creek and Highway 301, for the
purpose of manufacturing marijuana, in violation of 21 U.S.C.§§ &41, 856,
and 18 U.S.C. § 2.
9. Counts fourteen and fifteen charged MARK DAVID MASSEY and
DUANE CLARK with aiding and abetting in the possession with intent to
manufacture and distribute 100 or more marijuana plants (approximately
650 plants), and maintaining property located in the vicinity of Carter Road
and Buckeye Road for the purpose of manufacturing marijuana from an
B-10
unknown date to about November 1, 1988, in violation of 21 U.S.C. §§ 841,
856 and 18 U.S.C. § 2.
10. Counts sixteen and seventeen charged TIMOTHY KAY YO! NG,
JR. and BRYAN COKER with aiding and abetting in the possession with
intent to manufacture and distribute 1 00 or more marijuana plants, and
maintaining preperty located in the vicinity of Hogtown Slough for the pur-
pose of manufacturing marijuana from the spring of 1988 through the fall
of 1988, in violation of 21 U.S.C. §§ 841, 856 and 18 U.S.C. § 2.
11. Count eighteen charged BUCKLIN GODWIN, BOBBY ROYCE
MADDOX, MATT GODWIN, and ED LNU with aiding and abetting in
the possession with intent to manufacture and distribute 100 or more mari-
juana plants in the fall of 1989 in DeSoto County, Florida, in violation of
21 U.S.C. § 841, and 18 U.S.C. § 2.
12. Count nineteen charged DANIEL GODWIN, TIMOTHY KAY
YOUNG, JR., DAVID BRYAN ALDAY, and LUKE BRINDLE with aid-
ing and abetting in the possession with intent to manufacture 100 or more
marijuana plants around 1988 in Manatee County, Florida, in Violation of 21
U.S.C. § 841 and 18 U.S.C. § 2.
13. Count twenty charged DANIEL GODWIN, TIMOTHY KAY
YOUNG, JR., and DAVID BRYAN ALDAY with maintaining a house
located in the vicinity of 37180 Singletary Road, Myakka City, Florida, for
the purpose of manufacturing marijuana in 1988 in Manatee County,
Florida, in violation of 21 U.S.C. § 856, and 18 U.S.C. § 2.
14. Count twenty-one charged MARK DAVID MASSEY, DUANE
CLARK, KENNETH HARWICK, JUDY CLARK, and KAYUS HAR-
WICK with aiding and abetting in the possession with intent to manufac-
ture and distribute 100 or more marijuana plants in 1988 in Manatee
—
B-11
County, Florida, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2.
15. Count twenty-two charged MARK DAVID MASSEY and
DUANE CLARK with maintaining a house located on Gill Road in the
vicinity of Verna Bethany Road for the purpose of manufacturing marijua-
na in 1988 in Manatee County, Florida, in violation of 21 U.S.C. § 856 and
18 U.S.C. § 2.
16. Count twenty-three charged MARK DAVID MASSEY, DUANE
CLARK, KENNETH HARWICK, and TRACEY C. SHIRUNG with
aiding and abetting in the possession with intent to manufacture and dis-
tribute 100 or more marijuana plants in December 1987 in Manatee,
Florida, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2.
17. Counts twenty-four and twenty-five charged MARK DAVID
MASSEY and DUANE CLARK with maintaining a room and barn locat-
ed at 6490 Erie Road, Parrish, Florida, for the purpose of manufacturing
marijuana in December 1987 in Manatee, Florida, in violation of 21 U.S.C.
§ 856, and 18 U.S.C. § 2.
18.Counts twenty-six and twenty-seven charged DANIEL GODWIN
and GARY CLARK with aiding and abetting in the possession with intent
to manufacture and distribute a quantity of marijuana plants and maintain-
ing property located in the vicinity of Hurricane Bay near McCloud Road
and Duette Road in Manatee County, Florida, about 1988, in violation of 21
U.S.C. § 841, 856 and 18 U.S.C. § 2.
19. Count twenty-eight charged DANIEL GODWIN and GARY
CLARK with aiding and abetting in the possession with intent to manu-
facture and distribute a quantity of marijuana plants from 1988 through
early 1990 in Manatee County, Florida, in violation of 21 U.S.C. § 841, and
18 U.S.C. § 2.
20. Counts thirty and thirty-one charged MARK DAVID MASSEY,
STEVEN ARBUCKLE, and ROBERT ARBUCKLE with conspiracy to
import one kilogram or more of cocaine into the United States and impor
tation of one kilogram or more of cocaine from the fall of 1985 through the
spring of 1986 in Manatee County, Florida, in violation of 21 U.S.C. § 963,
952, and 18 U.S.C. § 2.
21. Counts thirty-two and thirty-three charged MARK DAVID
MASSEY, STEVEN ARBUCKLE, and ROBERT ARBUCKLE with
conspiracy to possess with intent to distribute one kilogram or more of
cocaine, and possession with intent to distribute one kilogram or more of
cocaine from the fall of 1985 to the spring of 1986, in violation of 2] U.S.C.
§§ 841, 846, and 18 U.S.C. § 2.
22. Counts twenty-nine and thirty-four through thirty-eight charged
MARK DAVID MASSEY, DUANE CLARK, DANIEL GODWIN,
TIMOTHY KAY YOUNG, JR., BRYAN COKER, and DAVID BRYAN
ALDAY, with conducting a continuing criminal enterprise from an
unknown date in 1981 and continuing to the date of the Indictment, July 20,
1990, in violation of 21 U.S.C. § 848.
23. Count thirty-nine charged TIMOTHY KAY YOUNG, JR. with
money laundering around May 12, 1987, in Manatee County, Florida, in
violation of 18 U.S.C. § 1956.
24. GRADON WILGUS is charged in docket 91-67-CR-T-15(B) ina
one count Information with conspiracy to possess with intent to manufac-
ture and distribute | ,000 or more marijuana plants from about 1985 through
the summer of 1990, in violation of 21 U.S.C. § 952 and 841.
B-13
25. Since the offense took place on or after November 1, 1987, the
Sentencing Reform Act of 1984 is applicable. This offense occurred from
about 1981 to July 20, 1990. The November |, 1989 guidelines were in
effect at the time the offense was committed. However, the guidelines
effective November 1, 1990, were applied to the facts of this case since
there are no ex post facto issues.
Offense Conduct
26.Information obtained from the United States Attorney’s Office and
special agents of the Manatee County Sheriff's Office reflected the follow-
ing: This offense involves 29 defendants that conspired from about 1981 to
July 20, 1990, to manufacture, distribute, and possess with intent to manu-
facture and distribute 1,000 or more marijuana plants in Manatee County,
Florida. The majority of these defendants resided in a community known
as Myakka City, Florida, which is located in rural Manatee County. Many
of the defendants are related and/or have known each other since childhood.
Since this offense involved immediate and distant family members, child-
hood friends, and a closely knit community, all defendants had common
knowledge of the other defendants’ participation in this offense.
27. All defendants participated in the cultivation of marijuana during
this ten-year span. The defendants generally fit into three groups. Several
of the defendants were “growers.” Growers were the owners of the fields
and usually ran a field in partnership with one or more other growers. Some
of these partnerships were long-term, such as the partnership between
MARK DAVID MASSEY and DUANE CLARK. The growers usually
banded together into partnerships for a growing season or for a particular
marijuana field. The defendants determined to be growers were MARK
DAVID MASSEY, DUANE CLARK, DANIEL GODWIN, TIMOTHY
KAY YOUNG, JR., BRYAN COKER, DAVID BRYAN ALDAY, DON-
B-14
ALD CLARK, GARY CLARK, and occasionally, ARTHUR NESS,
PHILLIP HARRIS, and ANTHONY CHARLES LEE.
28. The next category of defendants were “helpers” who assisted the
growers in a variety of ways. They helped clean areas in swamps, build
damns, drive vehicles, and perform various physical labor essential to the
cultivation of marijuana plants. Defendants who were involved in this man-
ner were: GLEN GAVEL, EARL NESS, LUKE BRINDLE, KENNETH
HARWICK, BUCKLIN GODWIN, BOBBY MADDOX, RODNEY
TEUTON, KAYUS HARWICK, WILLIAM OWEN BARTRUFF, and
JACK RICHEY. Generally, a “helper” would assist only one grower or a
partnership of growers at a time.
29.The final category of defendants were “cleaners” who dealt with
the marijuana after it was cut and processed it for distribution. Defendants
who engaged in this activity included all of the previously listed defendants
and JUDY CLARK, TRACEY SHIRLING, and MATT GODWIN.
30. Two defendants, MARVIN BENTLEY and ANTHONY
CHARLES LEE, do not fit into either of these categories. MARVIN
BENTLEY was a distributor of marijuana. He obtained and distributed
large quantities of marijuana from several of the growers. ANTHONY
CHARLES LEE rented and/or leased property he owned to growers on
two occasions for fields of marijuana to be grown. The first field was suc-
cessful, and the second field was partially cut before being found and erad-
icated.
31. The cultivation of marijuana was typically the same throughout
this case. First, one or more of a group of marijuana cultivators would find
a swampy area, generally an inaccessible and undesirable, which would
provide several factors they needed for a successful marijuana cultivation.
B-15
These factors included: regular water, inaccessibility, and light. Some of
the spots were located in extremely inaccessible areas, such as, huge
swamps, well off any road, while others were in wet areas near 1-75 or
other large highways in the Manatee County area. After finding a spot, the
marijuana grower decided whether to use either a system of mounds or
“floaters” upon which to grow the marijuana. They created mounds by
going into the swamp and digging up a pile of mud surrounded by wire.
Soil would then be added to the top of the “muckpile,” fertilized and chem-
ically treated with lime, or whatever was necessary, and then marijuana
seedlings would be placed upon the mound The mounds could then be used
over and over again, with little upkeep. In the later stages of this conspira-
cy, “floater” systems were created by using a large flower pot which fitted
into a sheet of styrofoam allowing the flower pot to float on the water in a
swamp. The flower pot would be filled with dirt, one or two marijuana
seedlings would be planted in it and, again, the plant would be self-suffi-
cient.
32. The defendants grew marijuana of exceptional quality. [t is com-
monly known as “Myakka Gold.” it has the highest THC level of any mar-
ijuana grown in the United States. They were able to achieve this quality of
marijuana by their unique cultivation process. Marijuana plants are either
male or female. The male plants do not have the buds, but the female plants
do. Male and female marijuana plants grow at different rates. The growers
were well aware of that and would plant large numbers of marijuana
seedlings, either in “floaters” or on the mounds. They would return sever-
al weeks later and pull all of the larger plants. The male marijuana plants,
at this stage in the growth, were discernable from the female plants. The
growers would pull all male plants to allow the female plants to continue to
grow. The female plants would begin to bud when they reached maturity
and, when there were no more male plants to fertilize them, would send out
many buds. After the plants were covered with buds, the growers would
B-16
return, cut them down, and dry them for several days. Drying consisted of
moving freshly cut plants to another location, such as a barn, where they
dried for several days. Several individuals packaged the buds. The mari-
juana would be placed either in zip lock bags or in vacuum packed bags.
No other part of the marijuana plant would be saved. The marijuana dis-
tributed from the Myakka City area was obtained from the bud of the mar-
ijuana plant only. After being packaged, the marijuana would be ready for
sale. The growers generally sold the marijuana for amounts approaching
$3,000 per pound.
33. This conspiracy is quite unlike other importation and distribution
cases. There was some competition between growers, and occasionally one
would steal from another if given the opportunity, but generally the compe-
tition appeared to be friendly. The growers and their co-conspirators often
cooperated with one another. Many growers changed their associates
between growing seasons and/or changed their association from one grow-
ing location to another. It was not unusual to see a large grower doing
menial tasks to help out another grower on occasion.
34. The conspiracy, which extended over a ten year period, involved
approximately a million marijuana plants. This amount was proven during
testimony at the trial of Donald Clark and through debriefings of the defen-
dants in this case. During this ten year period, crops were grown not only
in Manatee County, but also throughout the Middle District of Florida.
Defendants had “grow rooms” where they stored seeds. In the “grow
rooms” they grow thousands of small plants. They waited until the plants
were a few inches tali and then took them to different areas. The plants were
then placed in buckets or mounds. Some of the plants would die due to the
surroundings or environment. Defendants would “sex” plants, by pulling all
the male plants to prevent pollination. Therefore, it was normal procedure
for the defendants to lose approximately half of their crop by “sexing”
B-17
them. The debriefings of the defendants consistently confirmed these facts.
35. Throughout this conspiracy, the defendants grow and cultivated
numerous marijuana crops. All defendants have cooperated with the gov
ernment, except for Donald Clark. Testimony and evidence obtained by the
Manatee Sheriff's Office, reflected several major crops which substantiat
ed the extent of this case. They are as follows:
36. In the fall of 1986, a large quantity of marijuana crops was grown
on the property of CHARLES ANTHONY LEE located in Manatee
County, Florida. ANTHONY LEE was paid $15,000 for each crop which
was grown on his property. In addition, MR. LEE was paid to allow indi
viduals working the crop to sleep in a trailer on the property. Seedlings for
the Lee crop were grown in a shed belonging to GARY CLARK. BRYAN
COKER provided the lights, which were used to produce the seedlings.
TIMOTHY YOUNG and others planted approximately 20,000 seedlings
in the Lee field. They harvested about half of this crop before it was found
by the Manatee County Sheriff’s Office.
37. School House Bay is a large swamp area in Manatee County,
Florida. In April 1987, marijuana plants were seized by the Manatee
County Sheriff’s Office from this area. On cr about August 18, 1987, 401
plants were seized by the Sheriff’s Office. BRYAN COKER, TIMOTHY
YOUNG, and an unindicted co-conspirator, prepared and planted the field.
GLEN GAVEL dropped them off at the field. EARL NESS a/k/a TREY
NESS flew over the property and used an ultralight airplane to do surveil-
lance. Police officers in the marijuana field observed EARL NESS as they
attempted to apprehend the growers in the field. This field later was replant-
ed and additional marijuana was seized in the fall of 1987
38. In 1987, BUCKLIN GODWIN and RODNEY TELUTON grew a
B-18
marijuana field located in the northeast corner of Myakka State Park. The
field consisted of approximately 200 plants grown in plastic buckets.
39. A field of marijuana was grown off-Fort Green Road near Ona,
Florida. The field was in operation during 1987 and 1988, and was owned
by TIMOTHY YOUNG and BRYAN COKER. They grew approximate-
ly 5,000 seedlings for this field. They estimated that they received approx-
imately 30 pounds of marijuana worth approximately $2,400 a pound from
this crop.
40. In 1987 and 1988, ARTHUR NESS had a field with an unindict-
ed co-conspirator. They prepared eleven mounds and planted approximate-
ly 4,500 starter plants in a patch.
41. A field was located in 1987 and 1988 near Lorraine Road in
Manatee County, Florida. Eighteen mounds were harvested from this field.
The same site was used again in 1988. However, the crop was seized by the
Sheriff’s Department. The Manatee County Sheriff’s Office seized and
destroyed 2,423 plants. DUANE CLARK had provided the seedlings for
the 1988 crop.
42. In 1988, near Horsecreek on State Road 62, TIMOTHY
YOUNG, BRYAN ALDAY, and DANIEL GODWIN cultivated three
fields of marijuana on this property. The planting area consisted of three
spots. The first spot contained fifteen mounds. The second contained thir-
ty mounds, while the third spot consisted of 200 buckets. They harvested
marijuana and took it to Myakka City, Florida. The marijuana was hung in
a barn near DANIEL GODWIN’s home and trimmed in TIMOTHY
YOUNG’s house. DANIEL GODWIN, BRYAN ALDAY, TIMOTHY
YOUNG, BUCKLIN GODWIN, and others spent about three days mani-
curing the marijuana. The cleaners were paid $14 an hour. Defendants
B-19
obtained approximately 90 pounds of marijuana from these sites. The mar-
ijuana was split between YOUNG, ALDAY and GODWIN. LUKE
BRINDLE assisted in recovering the marijuana.
43. On August 19, 1988, officers seized marijuana plants near the
Manatee County Sheriff's Office sub-station in Manatee County, Florida.
The field had been planted by MARK MASSEY, DUANE CLARK,
GRADON WILGUS and others.
44. On November 16, 1988, the Manatee Sheriff’s Office seized
approximately 802 pounds of marijuana plants at Bullfrog Creek. The field
belonged to MARK MASSEY and DUANE CLARK. It consisted of
approximately 140 “floaters.” GARY CLARK helped place the marijuana
in this field and sold a large portion of it.
45. A cooperating unindicted co-conspirator had a house located in
Verna Bethany in Manatee County, Florida, in 1988, which was used as a
drying or cleaning house for marijuana. DUANE CLARK paid the unin-
dicted conspirators $1 0,000. The house was setup by DUANE CLARK
and the unindicted co-conspirator. The unindicted co-conspirator was paid
$10,000 by DUANE CLARK. MARK MASSEY also gave him four or
five pounds of marijuana. Participants who worked in the cleaning houses
parked down the street to avoid notice of activity around the home. Other
individuals picked them up and brought them to the home. KENNETH
HARWICK, GRADON WILGUS, and others were present and partici-
pated in the cleaning process. The cleaners were paid $12 an hour to clean
the marijuana.
46. In the fall of 1989, unindicted co-conspirators were growing a field
of marijuana in Glades County, Florida. They observed helicopters flying
around the field as they were returning home one day. They returned to
Myakka City and called DANIEL GODWIN and GARY CLARK who
B-20
assisted in removing the plants. They were able to harvest approximately 25
to 30 pounds of marijuana. GARY CLARK carried two large metal plates
with nails attached to them which he placed as booby traps in the field, hop-
ing that law enforcement individuals would step on them. The following
day, BUCKLIN GODWIN, MATT GODWIN, and others assisted in
cleaning and packaging the marijuana.
47. Various defendants possessed firearms throughout the conspiracy.
The majority of the defendants hunted with firearms for two purposes: To
check on the crops and to look for places to grow marijuana. They were
constantly searching for additional places to grow marijuana. Guns were
present in many of the homes where parts of this conspiracy took place.
Guns were also found in some of the fields where the growers camped to
watch or oversee their crops. According to case agents, guns were present
in the cleaning and grow rooms. Individuals bringing the marijuana to the
cleaning rooms after it was harvested often possessed firearms.
Role
48. DONALD CLARK is the father of GARY and DUANE CLARK.
He grew marijuana for years. This is substantiated by his prior convictions.
DONALD CLARK started other defendants in the growing business. He
grew seedlings with dirt in a pot. The pots could be placed anywhere. He
then sold the pots to the growers, and split the crops with them. He taught
them how to cultivate the marijuana. MR. CLARK was very active
throughout 1985 when arrested. After his conviction, he continued selling
marijuana plants. He was arrested again in 1987. During a search of his res-
idence in 1987, he was found to be in possession of 18 firearms. More mar-
ijuana plants were also found.
Custody Status
B-21
49. Duane Clark voluntarily surrendered to authorities on July 24,
1990. He was transported to the United States Marshal’s Office in Tampa,
Florida. Mr. Clark appeared before Magistrate Judge Elizabeth A. Jenkins
on that date, and a detention hearing was scheduled for July 25, 1990. Mr.
Clark appeared before Magistrate Judge Jenkins on that date with counsel.
The Court ordered him to be detained without bail.
Victim Impact Statement
50. There is no specifically identifiable victim in the offense of con-
viction.
Adjustment for Obstruction of Justice
51. The probation officer has no information suggesting that the defen-
dant impeded or obstructed justice.
Adjustment for Acceptance of Responsibility
52. Section 3E].1 states that if the defendant clearly demonstrates a
recognition and affirmative acceptance of personal responsibility for his
criminal conduct, a two level reduction is warranted. In determining
whether or not the defendant qualifies for this provision, appropriate con-
siderations include: voluntary termination or withdrawal from the criminal
conduct or associates; voluntary and truthful admission to authorities of
involvement in the offense and related conduct; voluntary assistance to
authorities in the recovery of the fruits and instrumentalities of the offense;
and the timeliness of the defendant’s conduct in manifesting the acceptance
of responsibility. This adjustment is not intended to apply to a defendant
who puts the government to its burden of proof by trial by denying the
B-22
essential factual elements of guilt, is convicted, and only then admits guilt
or expresses remorse.
53. Mr. Clark pled not guilty to this offense and went to trial. Upon
advise of counsel, he declined to make a statement to the Probation Office
regarding this offense. The Probation Office has no information which
would warrant a two level reduction.
Offense Level Computation
54. The guideline for 21 U.S.C. § 846 is found in 2D1.4 of the guide-
lines. That section states that if a defendant is convicted of a conspiracy or
an attempt to commit any offense involving a controlled substance, the
offense level shall be the same as if the object of the conspiracy or attempt
had been completed. One is then directed to 2D].1 where the base offense
level is determined by the drug quantity taken from the drug table.
55. Section 1 Bl.3 (Relevant Conduct) states that in determining the
base offense level, one should include all acts and omissions, aided or abet-
ted by the defendant for which the defendant would be otherwise account-
able, that occurred during the commission of the offense, in preparation for
that offense, or in the course of attempting to avoid detection or responsi-
bility for that offense, or that were otherwise in furtherance of that offense.
Section 1 B1.3(a)(2) states that with respect to offenses of a character for
which 3D1.2(d) would require grouping of multiple counts, relevant con-
duct includes acts and omissions that were part of the same course of con-
duct or common scheme as the offense of conviction. Application note one
of that section states that conduct for which the defendant would otherwise
be accountable includes conduct that the defendant, counseled, command-
ed, induced, procured, or willfully caused. In the case of criminal activity
undertaken in concert with others, whether or not charged in the conspira-
B-23
cy, the conduct for which the defendant otherwise would be accountable
includes conduct of others in furtherance of the execution of a jointly
undertaken criminal activity that was reasonably foreseeable by the defen-
dant.
56. Section 2D 1.1 (a)(3) states that in a case of an offense involving
marijuana plants, if the offense involved 5O or more marijuana plants, then
each plant is the equivalent of one kilogram of marijuana. Section 2D1.4
comment (n.2) states that were there is no drug seizure or the actual amount
seized does not reflect the scale of the offense, the sentencing judge shall
approximate the quantity of the controlled substance. In making this deter-
mination, the judge may consider, for example, the price generally obtained
from the controlled substance, financial or other records, similar transac-
tions in a controlled substance by the defendant, and the size or capability
of any laboratory involved.
57. The total weight of the marijuana used in determining the base
offense level includes the amount of drugs seized during the defendant’s
arrests as outlined in the criminal conviction section. Since these convic-
tions are part of the instant offense, they are considered under relevant con-
duct. However, these amounts do not affect the total offense level, since the
total weight of the drugs in the offense of conviction exceeds the amount
needed or required to set the highest offense level.
58. Base Offense Level: During the trial of the defendant, the govern-
ment proved by testimony and evidence, that the offense involved approx-
imately one million marijuana plants. Debriefings of all defendants in this
case, with the exception of the defendant, corroborated this information.
The drug quantity table sets 300,000 kilograms or more of marijuana at a
base offense level of 42.
4 2
B-24
59. Specific Offense Characteristics: If a weapon (including a firearm)
was possessed during commission of the offense, then the base offense
level is to be increased by two levels. Throughout this conspiracy firearms
were possessed. Mr. Clark was convicted in 1987, for possession of mari-
juana, and being a convicted felon in possession of firearms. At the time of
his arrest, eighteen firearms were located his possession. One of the
firearms was a 9 millimeter submachine gun. All weapons were loaded and
were ready for firing. Therefore, a two level increase is warranted. 2
60. Victim Related Adjustment: None 0
61. Adjustment for Role in the Offense: The Probation Officer
reviewed Section 3BI.1 of the guidelines. No aggravating or mitigating role
adjustment appeared to be appropriate in this case. Mr. Clark was a highly
culpable defendant in this case However, he did not organize, manage, or
supervise any of the criminal activity. Mr. Clark participated in this offense
by teaching others how to grow marijuana. He did not exercise any deci-
sion making authority in this offense. Mr. Clark was more of an expert in
the cultivation of marijuana and shared this information with other co-
defendents. The other codefendants then organized, managed and super-
vised their own cultivation of marijuana which was quite extensive. The
nature of his participation does not warrant any role adjustment.3Bl1.4 0
62.Adjustment for Obstruction of Justice: 0
63. Adjusted Offense Level (Subtotal) Ad
64. Adjustment for Acceptance of Responsibility: The defendant has
not clearly demonstrated a recognition and affirmative acceptance of per-
sonal responsibility for his criminal conduct. A two level reduction is not
B-25
warranted. 3E1.1
65.Total Offense Level: An offense level of more than 43 (the maxi-
mum level on the sentencing table) is to be treated as a level 43. Chapter
5, Part A, comment (n.2).
66.Chapter Four Enhancements:
43
None
PART B. THE DEFENDANT’S CRIMINAL HISTORY
(NOTE. It is the policy of the Probation Office to assume that all
defendants were represented by effective counsel or knowingly waived
counsel, in convictions which occurred any time after 1972)
Criminal Convictions
Date of
Arrest Charge/Court
67. 5/24/85
5/25/85
(Age 44)
Docket 85-821
Count |: Possession of
Cocaine, Count 2:
Possession of
Paraphernalia,
Count 3: Possession of
Marijuana;
Docket 85-843
Count |: Possession of
Cocaine, Count 2:
Felony—Possession of
Marijuana, Count 3:
Felony—-Possession of
Marijuana, Count 4:
Manufacture of Marijuana;
Count 5: Possession of
Date Sentence
Imposed/ Guideline/
Disposition Score
Docket 85-821:
12/10/85, pled
nolo contendere,
4Al.2(a)(2) 0
adjudicated
guilty, 2 years
community control,
$224.50 Court
costs;
Docket 85-843:
12/10/85, pled
guilty to all
counts,
adjudicated
guilty of counts
Laanee ©,
sentenced to 2
B-26
Paraphernalia, and Count years community
6: Possession of
control, each
Paraphernalia count to run
Manatee County Circuit concurrently with
Court, Bradenton, Florida. Docket 85-821;
Count 4: adiudica-
tion withheld, sen
tenced to 2 years
community control
to run concurrently
with Count 1.
Court costs of
$224.50;
Violation of
probation,
both cases,
7/27/87, pled
guilty, adjudicated
guilty, 18 months
State prison.
Received time
served on
: misdemeanor
counts.
The defendant was represented by counsel. In reference to Docket 85-
821, a Manatee County Sheriff’s Deputy was dispatched to a residence in
Bradenton, Florida, regarding a possible drug overdose on February 19,
1981. Donald Clark was present at the residence. A white female over-
dosed and was unconscious.
She was transported to Manatee Memonial
Hospital in critical condition as a result of a cocaine overdose. Officers
located various types of narcotics, paraphernalia, and marijuana in random
4
Fi
B-27
areas of the room. No arrests were made at this time, but all narcotics and
paraphernalia were taken into custody by the Sheriff’s Office.
As a result of the above information, the Manatee County Sheriff’s
Office began targeting Donald Clark as a suspect in narcotics’ manufactur-
ing and supply. After a lengthy investigation, the Manatee County Sheriff’s
Office obtained a search warrant for the defendant’s residence in Manatee
County, Florida. The search warrant was executed on May 24, 1985, and
numerous small quantities of marijuana, cocaine, and drug related para-
phernalia were found scattered throughout the residence. During daylight
hours on May 25, 1985, the search of the property was completed. Officers
found approximately 900 marijuana plants growing in an environmentally
controlled green house type facility located in the back corner of the prop-
erty. Other marijuana plants were growing in pots in a marshy area, near
the ranch property. Taken from the residence was a book indicating detailed
drug transactions with known drug traffickers throughout the Tampa Bay
Area. Mr. Clark admitted to detectives that he had been growing marijua-
na for a long time, and that he had made a lot of money from it. The defen-
dant was charged as a result of the search warrant in Docket 85-843.
On February 17, 1987, the defendant was arrested and charged with
possession of marijuana and being a convicted felon in possession of
firearms. His probation was violated and on July 27, 1987, he was sen-
tenced to 18 months state prison. Mr. Clark reported that he was released
from imprisonment on work release in September 1987. He completed his
sentence in December 1987.
This is considered part of the conspiracy as charged in the instant
offense.
B-28
68. 4/22/87 Count 1: Possession of 7/27/87: Pled 4A]1.2(a)(2)0
(Age 46) Marijuana, Count 2: nolo contendere,
Possession of a Firearm _—_ adjudicated
by a Convicted Felon guilty, 18 months
Docket 87-893 state prison to
Manatee County Circuit run concurrently
Court with Docket
Bradenton, Florida. 85-821;
sentence expired
December 1987.
The defendant was represented by counsel. On February 17, 1987, the
Manatee County Sheriff’s Office received information that Donald Clark
was in possession of 100 pounds of marijuana. The marijuana was report-
edly in his living room and in freezers located at the residence. On that
date, Manatee County Sheriff’s Office Deputies went to the residence of the
defendant. Mr. Clark answered the door, and the Manatee County Sheriffs’
Office advised that they had received information that he had marijuana
inside the home. Mr. Clark invited the deputes into the residence and
admitted that there was marijuana there. Mr. Clark then went into his own
room and took from the closet a bag of marijuana which appeared to be one
fourth and/or one-half pound in weight. An officer confronted the defen-
dant and advised him that they had information to believe that there was a
larger quantity of marijuana at the residence. Mr. Clark stated, “Go ahead
and look around.” In plain view of the family room alongside a pool table,
an officer noticed a .243 Winchester rifle. They also located a .22 Ruger
rifle on the dining room table. Both weapons were in plain view at the time
of the search. They questioned Mr. Clark about other firearms which might
be at the residence. He indicated that the barn had several firearms in it. An
additional sixteen firearms were located in the barn, including a 9mm sub-
machine gun. All weapons were loaded and were ready for firing.
B-29
This case is considered part of the instant offense.
Criminal History Computation
69. The total of the criminal history points is 0. According to the
Sentencing Table (Chapter 5, Part A), 0 to | criminal history points estab-
lish a criminal history category of l
Other Criminal Conduct
70.12/5/77 ——- Trespassing 2/13/78: Charge
(Age 35) Docket 77-1631-7 dismissed.
Manatee County Court
Bradenton, FL
No additional information is available.
71. Mr. Clark received in November 1985, a citation for not carrying
his driver’s license. He appeared in Court in Manatee County, Florida, and
entered a plea of not guilty to this charge. He was represented by Gregory
Hartman. The defendant provided proof of driver’s license, and the case
was dismissed in Docket 85-3762-T.
Pending Charges
72. None known.
PART C. SENTENCING OPTIONS
imprisonment
73. Statutory Provisions: The statute requires a mandatory minimum
of ten years to life. 21 U.S.C. § 841(b)(1)(A).
B-30
74. Guideline Provisions: An offense level of more than 43 is to be
treated as a level 43. Chapter 5, Part A, comment. (n.2). Based on a total
offense level of 43 and a criminal history category of 1, the guideline
Imprisonment range Is Ide.
Probation
75. Statutory Provisions: The defendant is ineligible for probation
since the offense is a class A felony. 18 U.S.C. § 3561 (a).
76. Guideline Provisions: The defendant is ineligible for probation
under the guidelines since the offense is a class A felony. 5B1.1
Supervised Release
77. Statutory Provisions: The statute requires a term of supervised
release of at least 5 years. 21 U.S.C. § 841 (b)(1)(A)
78.Guideline Provisions: Section 5DI.2 states that if a defendant is
convicted under a statute that requires a term of supervised release, that
term shall be at least three years, but not more than 5 years, or the minimum
period required by statute whichever is greater. The statute requires a term
of at least 5 years supervised release for this offense. Therefore, the guide-
line range becomes 5 years. 5D1.2(a)
Fines
79. Statutory Provisions: The maximum fine is $4,000,000. 21
U.S.C. 841 (b) (1) (A)
80. Since the offense was committed after December 11, 1987, the
B-31
Criminal Fine Improvement Act is applicable. That Act provides for no
interest on fines of $2,500 or less. Interest on fines over $2,500 accrues
beginning 15 days after the date of judgment and is based on the average
Treasury Bill interest rate. The interest rate is determined on a quarterly
basis and is not compounded. Interest can be waived or limited to a specif-
ic amount or for a specific time by the Court. A penalty of 10 percent on
delinquent fines and 15 percent on fines in default may be imposed, as well
as waived, for good cause. A notice of default must be sent out within 30
days of default.
81.A special assessment of $50.00 is mandatory. 18 U.S.C. 3013
82. Guideline Provisions: The fine range for this offense is from
$25,000 [SEI].2(c)(3) the Fine Table] to $4,000,000. [SEI.2(c)(4))
83.Section SEI.2(i) requires the Court to impose an additional fine
amount that is at least sufficient to pay the costs to the government of any
imprisonment, probation, or supervised release ordered, subject to the
defendant’s ability to pay. These costs may include drug and alcohol and/or
contract confinement costs. The most recent advisory from the
Administrative Office of the United States Courts, dated August 7, 1991,
provides the following monthly cost data:
Imprisonment (Federal prison facility) $1,492.00
Supervision $115.30
Drug/Alcohol Aftercare $172.33
Contract confinement $991.00
Restitution
84 There is no restitution owed on the instant offense.
Impact of the Plea Agreement
:
a
B-32
85. There is no plea agreement.
Denial of Benefits
86. Statutory Provisions: At the discretion of the Court, the defendant,
having been convicted of his third possession of drugs offense, shall be
ineligible for all federal benefits for up to 5 years after such conviction. 21
U.S.C. § 862(b)(1)(B)
87. This Section does not apply to any retirement, welfare, social secu-
rity, health, disability, veterans benefits, public housing, or any other simi-
lar offenses or other benefits for which payments or services are required
for eligibility. 21 U.S.C. § 862.(d)(1)(B)
88.Guideline Provisions: The Court, pursuant to 21 U.S.C. § 862, may
deny the eligibility for certain federal benefits of any individual convicted
of a distribution or possession of a controlled substance. S5FI.6
PART D. OFFENDER CHARACTERISTICS
Personal and Family Data
89. Donald Ralph Clark was born November 81940, in Bradenton,
Florida. He is one of two children born to Ralph and Edna Clark. The
defendant was raised in Manatee County, Florida. He has resided there all
of his life.
90.The defendant's father, Ralph Clark, Jr., died of cancer in Manatee
County, Florida. His father owned and operated a cattle and seed business
in Manatee County. He was also a Manatee County commissioner for six-
teen years.
B-33
91. Mr. Clark’s mother, Edna Clark, age 70, resides in Samoset,
Florida. She receives social security.
92. The defendant has one sibling, Sandra Rawls, who resides at Route
1, Box 216-A, Parrish, Florida. Mrs. Rawls is very supportive of the defen-
dant.
93. Mr. Clark reported that he left home in 1959 to get married. He
married Betty Lou DeSear in Georgia. Mr. Clark indicated that the mar-
riage did not work out and that his wife filed for divorce. A final divorce
decree was entered in 1961 or 1962. One child was wife filed for divorce.
A final divorce decree was entered in 1961 or 1962. One child was born to
this union, Sherry Victors, age 32, resides in Myakka, Florida. Mr. Clark
reported that after the divorce, his ex-wife was granted custody of the child.
He stated that he was not Court-ordered to pay child support.
94. Candice Wilgus confirmed that she married the defendant on April
24,1962, in Sylvester, Georgia Three children were born during their mar-
riage. Tammy Clark, age 29, resides in Myakka City, Florida. Donald Gary
Clark and Duane Clark are codefendants in this case and are presently
incarcerated in Sarasota County Jail in Sarasota, Florida. Candice Clark
advised that they eventually drifted apart and had different goals. Mrs.
Clark was very supportive of the defendant and stated that she maintains
frequent contact with him. The defendant and Candice Clark separated in
September 1980. A final divorce decree was entered on September 7, 1982,
in Manatee County, Florida.
Physical Condition
95. Mr. Clark ts six feet tal, and weighs 195 pounds. He said his over-
all health is good. He is not under any doctor’s care and has no history of
any serious medical problems.
Mental and Emotional Health
96. The defendant reported no history of any mental or emotional dis-
orders.
Su n
97. The defendant reported that he has used marijuana from about
1980 to the time of his arrest. He stated that he smoked marijuana once a
day. Mr. Clark said that he used cocaine for approximately two years, from
1984 to 1985, two or three times a week. The defendant stated that he
stopped because he did not like it. Mr. Clark reported that he socially con-
sumes alcohol and that is very rare.
Vocati kil
98. Manatee County School Records confirmed the defendant gradu-
ated on June 4, 1959. He was ranked 272 out of a class of 297.
Employment
99. Mr. Clark reported that he has been self-employed since 1963.
From 1965 to 1980, he leased 2700 acres in Manatee County, Florida. He
stated that he operated a seed, cattle, and sod farm. He reported that at one
time, he was the largest mover of sod on the West Coast. In 1976, he moved
out to Clark’s Farm in Manatee County where he leased 638 acres of prop-
erty. He stated that he planted sod and ran a wholesale sod business till his
arrest. He also farmed hay, watermelons, tomatoes, potatoes, and leased the
property out. He stated that his income varied depending upon the crop.
B-35
Mr. Clark reported that in 1990, he earned $30,000. He stated that from
1988 to 1989, he made $150,000. Mr. Clark reported that he averaged
between $50,000 to $75,000 a year.
100. The defendant received part of his income from the cultivation of
marijuana.
Financial Condition: Ability to Pa
101. Mr. Clark’s interest in Clark Farms in Manatee County, Florida,
was forfeited by jury verdict on June 21, 1991. It is estimated that the equi-
ty in this property is approximately $1,000,000 to $2,000,000. Mr. Clark
reported that his only remaining assets are a checking account at C&S Bank
with approximately $1,500 available, a truck valued at $2,000, and various
farm equipment valued at approximately $65,000. The defendant stated that
the farm equipment is held jointly with his son, Duane Clark. Clark Farms
was operated by the defendant and his son, Duane Clark. After the defen-
dant and his son were arrested, the business account was depleted for nec-
essary household expenses
2. Based on the ab nformation, the defendant does not have
PART E. FACTORS THAT MAY WARRANT DEPARTURE
\ tly exceeds the top of the
- warrant a departure, but
tence available
B-36
Supervisor’s Review:
This Pre-sentence Report has been reviewed for accuracy and complete-
ness.
James B. Bishop, Supervising
United States Probation Officer
Donald Clark
DOCKET NO. 90-1 75-CR-T-i7(C)
ADDENDUM TO THE PRE-SENTENCE REPORT
The probation officer certifies that the pre-sentence report, including
any revision thereof, has been disclosed to the defendant, his attorney, and
counsel for the government, and that the content of the addendum has been
communicated to counsel. The addendum fairly states any objections made
by counsel.
A position of parties meeting was held on October 30, 1991.
B TIONS
By the Government
The government has submitted no written objections to the pre-sen-
tence report.
By the Defendant
|.Paragraph 58, Base Offense Level [2DI.1 (a)(3), 1 B1.3] - Counsel
B-37
objected to a base offense level of 42. He argued that the offense did not
involve at minimum 300,000 marijuana plants or as many as 1,000,000
marijuana plants. He stated there was no evidence to substantiate the
300,000 plants and the estimate of 1,000,000 plants was nothing more than
conjecture. Counsel stated that much testimony was given during the trial
of the defendant concerning the number of plants estimated to have been
grown by various growers. He stated that at no time did the number of the
plants reach a level of 300,000. Counsel argued that the defendant should
only be held accountable for 900 or possibly 1,000
marijuana plants.
It is the position of the probation office and the government that this
offense Testimony and evidence was given during the trial of the defendant
which substantiated this amount.
2. Paragraph 59, Firearm [2D1.1(b)(1)] - Counsel objected to a 2
level increase for a weapon being possessed during commission of the
offense. He objected to the reference to Paragraph 68 of the report, stating
that the conviction was not part of the instant offense. Counsel argued that
there was no testimony at trial concerning the relationship of the firearms
and his defendant’s continued participation in the conspiracy.
It is the position of the government that the firearm adjustment is
appropriate in this case. Firearms were used in furtherance of this conspir-
acy to check on the crops and to look for places to grow marijuana.
Testimony was given at the trial that when Donald Clark was active in the
conspiracy guns were carried out into In addition to guns being present in
the defendant’s grow room and the fields home. The government considers
the defendants prior conviction in 1987, to be the instant offense. The
guidelines are applied based upon a preponderance of evidence from the
facts; the government is not required to prove all facts at trial.
B-38
3. Paragraph 61, Role [3B1.4, 3B1.2(a)] - Counsel objected to the
defendant not receiving a 4 level role reduction as a minimal participant in
the offense of conviction. He argued that the defendant is entitled to a min-
imal participant adjustment in this offense since he played a minimal role
in the “concerted activity.” He stated that this adjustment is intended to
cover defendants who are plainly among the least culpable of those in the
conduct of a group. He stated that the defendant’s lack of knowledge and
understanding of the scope and structure of the enterprise and of the activ-
ities of others it is indicative of a role as a minimal participant. He stated
that Mr. Clark’s involvement in this offense was limited to his own grow-
ing of marijuana and to his involvement with Philip Coker. Counsel also
makes reference to the fact that the probation office did not give the defen-
dant any role adjustment under 3B1.4. He argues that it is difficult to under-
stand how the defendant could be held accountable for 300,000 marijuana
plants to reach a base offense level of 42, and not be given a increase for
role in the offense.
It is the position of the probation officer that although Mr. Clark was a
highly culpable defendant in this case, he did not organize, manage, super-
vise any criminal activity. Therefore, no role adjustment was warranted. It
is the position of the government that the defendant was vertically integrat-
ed into this conspiracy and was hands-on in all the different phases of the
operations. Mr. Clark could not be described as a “minimal participant.” A
minimal adjustment according to the guidelines is to be used infrequently
such as a courier for a smuggling transaction involving a small amount of
drugs.
5. Paragraph 68 [4AI1.2(a)(2)] - Counsel objected to the estimated
amount of marijuana in weight. He stated that there was no evidence what-
soever put into the record or take from any any witness which would sub-
B-39
stantiate that amount of marijuana. He stated that at the time the amount
was less than the amount required to make one marijuana cigarette. He also
objects to this conviction being considered part of the instant offense.
It is the position of the probation officer that this conviction is part of
the instant offense. The weight of the marijuana, as outlined in the circum-
stances of this conviction, was taken from a Manatee County Sheriff’s
Office report. Should this conviction not be considered part of the instant
offense, then it would have to be scored under 4A\l.] (a) and assessed 3
points.
6. Paragraph 100 [No guideline calculation] - Counsel
objected to the statement that the defendant received part of his income
from the cultivation of marijuana. He argued that there was no evidence to
substantiate that he received any p
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