# Petition for Writ of Certiorari — Clark v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0680%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 513 U.S. 1019 ## Text ED 94 726 OCT 17 19% ( gprine ur ink teaka 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 oad io 5 bo eG ko va bso eS a be awh we ewe i a ill NEE 65 cn vec ccc ee cecctebeccvceseces iv ad on a ya 4 6 ould se Vee ae eins Oe ewe l ee ia iy es ss ke cbse bisesbeses’s 2 CONSTITUTIONAL, STATUTORY AND a rn 2 ee 5 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. ER gk hs ak seo os ko We ace as a oe Aw 21 ili 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 A-13 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 creat [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0680%3A1. Public record. Not legal advice.