United States v. Ford , 839 F.3d 94 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 14-2245
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES F. FORD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Thompson and Kayatta, Circuit Judges,
and Mastroianni,* District Judge.
Hunter J. Tzovarras for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.
October 14, 2016
* Of the District of Massachusetts, sitting by designation.
MASTROIANNI, District Judge. James F. Ford, with
assistance from his wife Darlene and his sons Paul and Jim,1
directed a marijuana-growing operation out of a home in Monroe,
Maine. Acting on a tip from Jim's girlfriend, police executed a
search warrant and interviewed James, who openly described the
sophisticated operation and discussed his previous marijuana-
growing case in Massachusetts. After a trial, a jury convicted
him on the four counts charged in the superseding indictment:
conspiracy, manufacturing over 100 marijuana plants, maintaining
a residence for marijuana manufacturing, and possessing a firearm
as a felon. The district court applied a statutory mandatory
minimum and sentenced James to 120 months in prison followed by
eight years of supervised release. On appeal, James challenges
his convictions and his sentence. Finding no reversible error, we
affirm.
I. Background
On the evening of November 15, 2011, Maine drug enforcement
officers, via loudspeaker, ordered the occupants of James's and
Darlene's home to exit and executed a search warrant. The officers
1 To avoid confusion, we refer to the members of the Ford
family by their given names. Moreover, as we did in Darlene's
appeal, we refer to the defendant as "James" and to his son as
"Jim." See United States v. Ford, 821 F.3d 63, 65 n.1 (1st Cir.
2016).
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discovered a large marijuana-growing operation and two
disassembled firearms under a makeshift bed outside of one of the
cultivation rooms.
Later that evening, James discussed the operation in detail
during a recorded interview. He described the intricate set-up,
which he was "pretty proud of," but lamented the chores and
expenses required by the operation. For example, James explained
he had to empty air-conditioner buckets every morning or else they
would "run over." He also had to collect water from a spring in
Dixmont, Maine, using a 150-gallon tank, because the well water at
the home was "horrible" and would "kill" the plants. In addition,
James's crop "had bug problems," but he used hypoaspis miles, a
type of mite, to control fungus gnats attracted to the marijuana
plants. James told the officers he normally yielded either eight
or twelve pounds of marijuana every nine weeks,2 had produced
thirty-seven total harvests, and had sold each pound for
approximately $2,000. He deciphered some of the acronyms on a
calendar officers found in the home, explaining "H1" referred to
harvest one and "H2" meant harvest two.
Notably, James volunteered during the interview "you already
know that I got popped in Mass" when explaining his previous
2 James initially stated he grew eight pounds every six months
but later in the interview clarified that each harvest cycle was
nine weeks.
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growing operation in Wakefield, Massachusetts, which had been
uncovered through a confidential informant. James revealed he
paid his attorney in Massachusetts over $20,000 yet still "ended
up with a frigging . . . felony conviction because they forced me
to plea bargain." He further disclosed that he lost a house in
connection with the bust, which he thought was unfair because the
property was not purchased with "drug money" and his "name wasn't
even on the search warrant."
On April 23, 2013, the grand jury returned a superseding
indictment against members of the Ford family. Count 1 charged
James, Darlene, and Paul with conspiring to manufacture 100 or
more marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and
846. Count 2 contained the following language:
On about November 15, 2011, in the District of Maine,
defendants
JAMES F. FORD
AND
PAUL FORD
Did knowingly and intentionally manufacture a Schedule
I controlled substance, specifically, 100 or more
marijuana plants, and did aid and abet such conduct, in
violation of Title 21, United States Code, Section
841(a)(1) and Title 18, United States Code, Section 2.
It is further alleged that the penalty provisions of
Title 21, United States Code, Section 841(b)(1)(B) apply
to the conduct described herein.
Count 3 charged James and Darlene with maintaining a residence for
the purpose of manufacturing marijuana in violation of 21 U.S.C.
§ 856(a)(1) and 18 U.S.C. § 2. And Count 5 charged James with
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possessing firearms as a convicted felon in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2).
A three-day jury trial commenced on November 19, 2013. During
opening statements, defense counsel acknowledged that James grew
marijuana. His attorney instead focused on defending against the
conspiracy charge, rebutting the allegation that James grew over
100 marijuana plants, and asserting that the main purpose of the
residence was not for growing marijuana. He argued that although
Darlene "ke[pt] track of the family finances," she was not involved
in the growing operation. Moreover, defense counsel informed the
jury that, while James and Darlene were away, Jim "snuck" his
girlfriend into the house and revealed the operation in an attempt
to demonstrate he could support her. Jim "wanted to seem like he
was part of" the operation even though he wasn't, defense counsel
insisted.
James Weaver, a retired special agent with the Maine Drug
Enforcement Agency, testified that Jim and Paul were covered in
"small green flecks" and smelled of marijuana after exiting the
home on the day of the search. Twenty-four marijuana plants were
found in one room, an additional twenty-four plants in a separate
room, and 163 starter plants in yet another room. All the plants
had root systems, and the parties stipulated the plants were
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marijuana. The government also played the recorded interview of
James for the jury without objection.
Weaver further testified that officers discovered two rifles
in the home, both of which the parties stipulated were firearms
under federal law. He also described calendars found in the home
which listed various figures next to the words "payday," "income,"
and "Boston." Moreover, Weaver explained, the "Boston" figures
often corresponded to "M" dates on another calendar, which he
believed referred to "the market or move date, the date that
[James] sold that marijuana." Notebooks, also seized during the
search, listed "$760 J and P payday" on various dates, as well as
other figures next to the word "income." Checkbooks reflected
payments of $939 and $831 to the electric company. Weaver
testified the handwriting from the calendars, notebooks, and
checkbooks all appeared to be the same as the handwriting from DMV
records filled out by Darlene.3
Photographs, videos, and emails discovered during the search
were presented to the jury. The photographs showed James tending
marijuana plants and collecting water from the spring in Dixmont.
3 Another government witness, Michael Ballback, an asset
forfeiture investigator for the Bureau of Alcohol, Tobacco, and
Firearms, testified the handwriting from checks written by Darlene
appeared to be the same as that in the notebooks and bank deposit
slips. James neither objected to this handwriting testimony at
trial, nor has he challenged it on appeal.
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A separate photograph showed Paul collecting water from the same
spring. A video depicted James firing the Sig Sauer .229 rifle at
a shooting range in Jackson, Maine, with Darlene narrating in the
background.
The emails contained what appear to be discussions between
members of the Ford family about the growing operation. For
example, in one email to Paul, James complained that Paul was
"useless at H time." James told Paul not to come to the house
without calling because he had "expropriated way too much material
recently, obviously to fund your journey into spaceland."
Nevertheless, James informed Paul: "I am not booting you out of
the business." In response, Paul complained to James that he did
not understand "this crap about not being on your property," since
he would "have to be over there at least two or three times a week
to get H2O for this place and check on the annex." Paul continued:
"I don't care if you say the annex is Mom's. I am still going to
be working on it--lights, CO2, refill, et cetera, et cetera. I
did [a] load of work on the place getting it running while you
were in Jamaica, thank you very much." Paul stated he did not
want to hear "any more of this one-man operation bullshit anymore."
In another email, Paul told James that Darlene had been
"spending a little too much on these cruises things, but, you know
what, she does one hell of a job being a secretarial to this whole
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conundrum we call business." Paul insisted that he be given "a
little bit more of the responsibility," because "when it's just me
and you, we run this place like NASA." Paul also recommended that
James keep Jim "away from the actual ops" and instead "[s]et him
up doing all of the soil and buckets and fert, cal ni., CO2,
anything we need." Weaver testified those materials are used for
growing marijuana. In an email to Darlene, James reported Paul's
comment that she was "a great secretary" and informed her that
Paul brought "my bugs around 8:00 p.m." but did not stay long.
Weaver testified he understood "bugs" to be a reference to the
"hypoaspis miles mites" used to eat fungus growing on marijuana
plants, and James conceded this point during his testimony.
Michael Ballback, the asset forfeiture investigator,
testified James's and Darlene's bank records showed total deposits
of $65,277.93 in 2009, $135,397.55 in 2010, and $80,935.44 in 2011,
totaling $281,610.92, of which $216,156.45 were cash deposits.
Moreover, the deposit dates often corresponded with the "income"
dates listed in the notebooks and the "M" dates listed in the
calendars seized during the search. James and Darlene paid
$25,336.62 for electricity from 2009 to 2011 and $13,097.98 for
rental cars from 2010 to 2011.
Jim's ex-girlfriend, Cassandra Spencer, testified for the
government. Prior to her testimony, James renewed his pretrial
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hearsay objection. Defense counsel argued Spencer's testimony as
to statements made by Jim when he revealed the marijuana operation
to her was not admissible under Federal Rule of Evidence
801(d)(2)(E) as statements "in furtherance of the conspiracy."
Based on the government's proffer and its recollection of Spencer's
testimony during Darlene's trial, the district court ruled that
the statements furthered the conspiracy because
she was told, basically, not to say anything, that she
was suspicious about what was going on, and the whole
purpose of the blindfolding and the displaying of the
alleged operation was to quell her suspicions and to get
her to be quiet about them.
So quieting someone who's suspicious about the
conspiracy is in furtherance of the conspiracy from my
viewpoint.
Spencer testified she became pregnant shortly after she began
dating Jim. Jim told her that he worked with his father and
brother "building control systems that students would train on"
for a company called Boaleeco,4 but he "never seemed to . . .
maintain an actual work schedule." In particular, the night before
one system was to be delivered, Jim "had gotten so high that he
couldn't wake up." That surprised Spencer, so she began to
question Jim about what he did for a living. When asked by the
4James testified that he built training benches for trade
schools on a contract basis for Boaleeco while living in Maine.
James also testified his sons helped him with the contract work
"quite often" and he would pay them.
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prosecutor "what exactly . . . were your questions," Spencer
testified: "Well, you're not working like you said you were, you
know. And why is it okay that you're not delivering these systems
as you said, you know? I didn't understand what was going on."
One night, Jim blindfolded Spencer, brought her to his parents'
home while they were away, and showed her the marijuana-growing
operation.
When the prosecutor asked about Spencer's conversation with
Jim that night, James renewed his hearsay objection. The district
court again overruled the objection, explaining:
[I]f you're involved in a drug-trafficking conspiracy
and you have a serious, intimate relationship with
someone and they begin to suspect what you're doing and
you bring them along and you say, this is what we're
doing, but this is the family business, but you--now
that you know, you have to keep quiet, that is in
furtherance of the conspiracy.
Defense counsel pressed that Spencer "never said she was suspicious
that he was doing anything illegal or growing marijuana," but the
court held firm, responding:
That doesn't matter. He decided to take her in. She was
suspicious about what he was doing generally. . . .
Figure that perhaps, over the course of time, she would
really begin to suspect and would unearth what exactly
he was doing. So he decided to preempt, bring her in,
show her the family business, and at that point tell her
to keep quiet.
Spencer then testified Jim told her that he and his brother
"did most of the day-to-day work" for the operation, whereas "his
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dad basically was the overseer." He stated Darlene "dealt with
all the money," including paying the bills as well as paying the
brothers approximately $500 each week in cash for their work. Jim
also told Spencer that she could not tell anyone this information;
even Jim's "parents and his brother couldn't know that I was being
let in on this secret." On cross-examination, Spencer explained
that she questioned Jim's employment because she was concerned
about his ability to support her and their child. It was after
Spencer raised this concern that Jim revealed the operation and
told her not to worry because he was growing marijuana with his
father. Spencer eventually tipped off the police to the growing
operation.
The government's final witness was James Bruce, a
Massachusetts State Trooper. After the government proffered that
he would testify as to the prior marijuana-growing operation in
Massachusetts, James objected that the testimony was inadmissible
under Rules 404(b) and 403 of the Federal Rules of Evidence.
Defense counsel argued the testimony was not relevant for any
special purpose because James was not disputing that he knowingly
grew the marijuana in Maine. The district court disagreed,
explaining that, in the absence of a stipulation, the evidence was
relevant to James's motive, opportunity, intent, preparation,
plan, and knowledge, because the government retained the burden of
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proving each element of the crime, regardless of the defenses
raised. In response to defense counsel's argument that the
probative value of the evidence was outweighed by its prejudicial
effect, the court offered to provide the jury a limiting
instruction.
Bruce testified that he executed a search warrant at 2
Fellsmere Avenue in Wakefield, Massachusetts on October 11, 2002.
He discovered three rooms "devoted entirely to growing marijuana."
The operation was "pretty impressive," with plants in different
stages of maturity and a variety of equipment. During the search,
James informed Bruce that he did not reside at the house but
actually lived across the street at 5 Fellsmere Avenue. James
consented to a search of that home, where Bruce discovered another
grow operation. Bruce testified the operations were consistent
with distribution, rather than personal use. The parties
stipulated that James was convicted in state court of possession
of marijuana with intent to manufacture, distribute, or dispense,
a crime punishable by imprisonment for a term exceeding one year
under Massachusetts law. Documents showed that 2 Fellsmere Avenue
was forfeited to Massachusetts authorities. The district court
instructed the jury it could not consider this evidence as proof
that James "is a bad person or that . . . he is the kind of person
who is likely to commit a crime," but it could use the evidence to
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evaluate his state of mind, intent, motive, opportunity to commit
the charged crimes, or to determine if James acted according to a
plan or by accident or mistake.
After the government rested, James took the stand, testifying
he moved to Maine because living in Wakefield, Massachusetts became
too expensive. James intended to continue his contracting work
for Boaleeco, with which his sons helped him, as well as install
heating systems. James testified he did not buy the Maine house
for the purpose of growing marijuana, but decided to do so when
his work for Boaleeco dried up. He insisted his family had no
input in the decision and provided no help in the operation. In
fact, James testified, his wife had no knowledge of the operation,
although his sons did. But James claimed he encouraged his sons
to get legal jobs.
James explained that whenever he received a check, he would
cash it and give the money to Darlene, who kept track of the
family's finances in the notebooks. James testified, however,
that he did not tell Darlene any income was derived from marijuana;
rather, he told her it was from contracting work with Boaleeco.
James and Darlene rented cars often to visit her parents in New
Hampshire and Massachusetts. James also sold marijuana in
Massachusetts during the trips, but he maintained Darlene was
unaware the vehicles were stocked with marijuana. James agreed
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the three grow rooms contained over 100 marijuana plants (including
"starter plants") on the day of the search, all with stems, leaves,
and root systems.
After the defense rested, James renewed his objection to the
verdict form, which asked the jury to make a finding as to the
number of plants James was individually responsible for
manufacturing. Defense counsel argued that the superseding
indictment, by alleging both James and Paul manufactured 100 or
more marijuana plants, failed to apprise James that he would be
held responsible for that entire amount. The district court
disagreed, explaining the indictment put James on notice he would
have to defend against possessing 100 or more marijuana plants
and, in fact, defense counsel argued during opening statements
that James was not responsible for that amount. The court,
however, agreed to give the jury the option of finding James
responsible for manufacturing 50 or more plants, or 100 or more
plants.
During final instructions, the court reiterated its prior
limiting instruction regarding prior bad acts. The court also
instructed the jury that, if it found James guilty of the
manufacturing charge, it would have to decide "the quantity of
marijuana that he, and not anyone else, intentionally
manufactured." After closing arguments and deliberations, the
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jury returned its verdict. It found James guilty on all four
counts. Moreover, as to Count 2, the jury found that James
manufactured 100 or more marijuana plants.
At sentencing, James objected to application of 21 U.S.C. §
841(b)(1)(B)(vii), which prescribes a ten-year mandatory minimum
for manufacturing 100 or more marijuana plants if the individual
was previously convicted of a felony drug offense. Defense counsel
again argued, relying on Alleyne v. United States, 133 S. Ct. 2151
(2013), that the superseding indictment did not allege at least
100 plants were attributable solely to James. Defense counsel
also argued the Eighth Amendment prohibited the mandatory minimum
because some states had legalized marijuana and the federal
government was not prosecuting its production in those states.
The district court rejected both arguments. It did note, however,
that in light of the state legalizations "we are in sort of an odd
time for purposes of marijuana." After calculating a Sentencing
Guideline range of 97 to 121 months of imprisonment, which produced
a range of 120 to 121 months when combined with the statutory
minimum, the court sentenced James to 120 months in prison to be
followed by eight years of supervised release.
II. Analysis
James raises four arguments on appeal. First, he argues the
superseding indictment, in violation of Alleyne, 133 S. Ct. 2151,
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did not sufficiently notify him that he would be held responsible
for manufacturing 100 or more marijuana plants. As a result, James
argues, the district court erred in instructing the jury to make
a quantity determination and in applying the ten-year mandatory
minimum sentence set forth in 21 U.S.C. § 841(b)(1)(B)(vii).
Second, James argues the district court improperly admitted
Spencer's hearsay testimony under the exception for statements "in
furtherance of a conspiracy." Fed. R. Evid. 801(d)(2)(E). Third,
James challenges the admission of Bruce's testimony regarding the
Massachusetts growing operation. Lastly, James contends his
sentence is prohibited by the Eighth Amendment.
A. Alleyne Claim
We review James's preserved Alleyne claim, based on an
allegedly deficient indictment, de novo. See United States v.
Rose, 802 F.3d 114, 127 (1st Cir. 2015); United States v. Etienne,
772 F.3d 907, 922 (1st Cir. 2014).
In Alleyne, the Supreme Court, extending the logic of Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000), held that "any fact that
increases the mandatory minimum [penalty for a crime] is an
'element' that must be submitted to the jury" and found beyond a
reasonable doubt. Alleyne, 133 S. Ct. at 2155. Both Alleyne and
Apprendi also emphasized the necessity of including these penalty-
increasing facts in the indictment. See id. at 2159-60; Apprendi,
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530 U.S. at 476, 478-80; See United States v. McIvery, 806 F.3d
645, 648-49 (1st Cir. 2015), cert. denied, 2016 WL 1599830 (Oct.
3, 2016); see also United States v. Cotton, 535 U.S. 625, 627
(2002). "Defining facts that increase a mandatory statutory
minimum to be part of the substantive offense enables the defendant
to predict the legally applicable penalty from the face of the
indictment." Alleyne, 133 S. Ct. at 2161. This, in turn, allows
the defendant to prepare an appropriate defense. Id. at 2160;
Apprendi, 530 U.S. at 478.
James asserts the superseding indictment violated these
principles because it alleged James and Paul manufactured 100 or
more marijuana plants, which meant James might have produced
between one and 99 plants with Paul producing the remainder.
"An indictment is sufficient 'if it contains the elements of
the offense charged, fairly informs the defendant of the charges
against which he must defend, and enables him to enter a plea
without fear of double jeopardy.'" United States v. Parigian, 824
F.3d 5, 9 (1st Cir. 2016) (quoting United States v. Yefsky, 994
F.2d 885, 893 (1st Cir. 1993)). On the other hand, mistaken or
omitted indictment language is reversible if "it deprived the
appellant of notice or otherwise misled him to his detriment."
United States v. Eirby, 262 F.3d 31, 38 (1st Cir. 2001); see also
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United States v. Lanza-Vázquez, 799 F.3d 134, 148 (1st Cir. 2015)
(discussing related concept of prejudicial variance).
The superseding indictment could have been clearer as to the
number of marijuana plants individually attributable to James and
Paul. The first clause of Count 2 stated that on November 15,
2011, James and Paul "[d]id knowingly and intentionally
manufacture . . . 100 or more marijuana plants." Considering this
language in isolation, it is not entirely clear, for example,
whether James and Paul separately manufactured 100 or more plants
each, or instead together manufactured that amount. Nevertheless,
reading the indictment as a whole, we conclude James had adequate
notice that he was alleged to be responsible, and thus subject to
punishment, for manufacturing 100 or more marijuana plants.
Count 2 also included an aiding and abetting charge under 18
U.S.C. § 2. Specifically, it stated James and Paul "did aid and
abet such conduct, in violation of . . . Title 18, United States
Code, Section 2." Thus, even under James's theory, the aiding and
abetting language still apprised him that he could be punished for
all 100 plants. See 18 U.S.C. § 2(a) ("Whoever commits an offense
against the United States or aids, abets, counsels, commands,
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induces or procures its commission, is punishable as a
principal.").5
Count 2 further stated "the penalty provisions of" 21 U.S.C.
§ 841(b)(1)(B) apply. Those provisions set forth, in relevant
part, a ten-year mandatory-minimum penalty for manufacturing "100
or more marihuana plants regardless of weight" if the individual
was previously convicted of a felony drug offense. 21 U.S.C. §
841(b)(1)(B).6 This penalty language therefore indicated that
James would need to defend against the allegation that he
manufactured 100 or more marijuana plants or else risk application
of the mandatory minimum.
Moreover, it is clear James had knowledge of this penalty-
increasing fact, as defense counsel asserted during opening
statements that James "wasn't manufacturing over a hundred
5
Although the statute is written in the disjunctive ("or
aids, abets . . .") and the indictment was in the conjunctive ("and
did aid and abet . . ."), this type of discrepancy is generally
considered permissible. See, e.g., United States v. Farish, 535
F.3d 815, 823-24 (8th Cir. 2008); cf. United States v. Torres-
Colón, 790 F.3d 26, 34 (1st Cir. 2015) ("[I]t is well-established
that where an indictment charges in the conjunctive (using 'and')
but the statute is framed in the disjunctive (using 'or'), the
government need only prove one of the charged acts at trial.").
In any event, this issue has not been raised on appeal, nor would
it change the result in this case.
6
Section 841(b)(1)(B) also prescribes a five-year mandatory
minimum penalty for manufacturing 100 or more plants if the
individual had not been previously convicted of a felony drug
offense.
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marijuana plants" on the day of the search. See McIvery, 806 F.3d
at 652 ("[T]he defendant was on ample notice . . . of both the
government's assertion that the statutory mandatory minimum
applied and his potential exposure to that mandatory minimum.").
Accordingly, this was not a case in which a latent ambiguity
throughout an indictment lured a defendant to construe it one way,
only to be surprised at trial. Rather, this was a case in which
a patent ambiguity in the syntax of a single sentence was resolved
by the thrust of the indictment as a whole and read by counsel as
placing at issue precisely that which was at issue.
Even if James could demonstrate an Alleyne error on this
theory, it was clearly harmless beyond a reasonable doubt. See
McIvery, 806 F.3d at 649-50 (holding that Alleyne errors are
subject to harmless-error review). The district court
appropriately instructed the jury to decide the quantity of
marijuana that James, "and not anyone else, intentionally
manufactured." And in response to James's Alleyne argument, the
court added to the verdict form the option of finding James
responsible for manufacturing 50 or more plants, in addition to
100 or more plants. The jury ultimately found James had
manufactured 100 or more plants. This finding was fully consistent
with the overwhelming and uncontroverted evidence at trial.
Indeed, James's defense was that he manufactured the marijuana
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alone, and, as the district court noted, he testified unequivocally
to that effect.7 Finally, at oral argument, James's appellate
counsel could not articulate how the trial would have been any
different if the indictment had been clearer.
B. Hearsay Claim
James next challenges the admission of Jim's out-of-court
statements to Spencer under Federal Rule of Evidence 801(d)(2)(E).
Under that rule, statements made by a defendant's co-conspirators
"during and in furtherance of the conspiracy" do not qualify as
hearsay. Fed. R. Evid. 801(d)(2)(E). "The proponent of such a
statement must prove, by a preponderance of the evidence, that the
declarant and the defendant were members of a conspiracy when the
statement was made, and that the statement was made in furtherance
of the conspiracy." United States v. Ciresi, 697 F.3d 19, 25 (1st
Cir. 2012). "A district court's determination 'as to whether this
burden has been met is known in this circuit as a Petrozziello
7 Although defense counsel asserted during opening statements
that James "wasn't manufacturing over a hundred marijuana plants"
on the day of the search, James testified that his house contained
over 100 plants, all of which had stems, leaves, and root systems,
on that day. His trial strategy instead was that the jury should
not consider the "starter plants" to be marijuana plants.
Consistent with that strategy, defense counsel objected to the
government's proposed instruction defining "plant" and sought to
leave the term undefined. The district court ultimately sided
with James, and the issue has not been raised on appeal.
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ruling,' after our holding in United States v. Petrozziello, 548
F.2d 20 (1st Cir. 1977)." Id. (quoting United States v. Mitchell,
596 F.3d 18, 23 (1st Cir. 2010)).
"A court may provisionally admit a statement under Rule
801(d)(2)(E) and defer its final Petrozziello ruling until the
close of evidence." United States v. Paz-Alvarez, 799 F.3d 12, 29
(1st Cir. 2015). "To preserve a challenge to a district court's
Petrozziello ruling, a defendant must object on hearsay grounds
when his or her coconspirator's statement is provisionally
admitted and must renew the objection at the close of evidence."
Ciresi, 697 F.3d at 25-26. Preserved challenges are reviewed for
clear error, and unpreserved challenges are reviewed for plain
error. Id. at 26.
The wrinkle in this case is the district court did not
provisionally admit the out-of-court statements but allowed the
complete and final admission during Spencer's testimony. The
government contends James still had to renew the hearsay objection
at the close of evidence, and his failure to do so renders this
challenge unpreserved and subject to plain error review. James
asserts he raised the issue before trial, renewed his objection at
trial prior to Spencer's testimony, and renewed the objection yet
again during her testimony. As the district court made clear it
was not deferring a final ruling on the issue until the close of
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evidence,8 James argues he was not required to renew the objection
any further. We assume, favorably to James, that in light of this
posture, he preserved the hearsay challenge and clear error review
applies.9
Although "no precise formula" exists, "[g]enerally speaking,
. . . a coconspirator's statement is considered to be in
furtherance of the conspiracy as long as it tends to promote one
or more of the objects of the conspiracy." United States v. Piper,
8
Indeed, when James renewed his hearsay objection during
Spencer's testimony, the district court stated: "Well, that's a-
-that ruling I've already addressed, and I reject."
9
This assumption may be overly generous in light of this
circuit's precedents requiring that the Petrozziello determination
be made at the end of all the evidence and placing the onus on the
defendant to request such an express trial-end finding. See United
States v. Mangual-Garcia, 505 F.3d 1, 8-9 (1st Cir. 2007); United
States v. Flemmi, 402 F.3d 79, 94 (1st Cir. 2005); United States
v. Perez-Ruiz, 353 F.3d 1, 12 (1st Cir. 2003); see also United
States v. Richardson, 14 F.3d 666, 669 (1st Cir. 1994) (district
court made final Petrozziello determination at the close of the
government's case rather than at the close of all the evidence,
but defendant's failure to object to this procedure rendered
hearsay challenge unpreserved); United States v. Ortiz, 966 F.2d
707, 715 (1st Cir. 1992) (despite district court's promise to make
a trial-end determination and failure to do so, that error did not
"obviate[] the need for the defendants to lodge an objection at
the proper time"). But see United States v. Sepulveda, 15 F.3d
1161, 1180 (1st Cir. 1993) ("The party at whom the evidence is
aimed must object to the statement when it is offered; and, if the
district court accepts the evidence de bene, must then ask the
court at the close of all the relevant evidence to strike the
statement . . . ." (emphasis added)). Nevertheless, as we explain
below, the district court's error in admitting Spencer's hearsay
testimony was harmless even under the more defendant-friendly
clear error standard of review. Accordingly, we need not
definitively resolve the preservation issue in this case.
- 23 -
298 F.3d 47, 54 (1st Cir. 2002); see also United States v. LiCausi,
167 F.3d 36, 50 (1st Cir. 1999) ("The statement is admissible if
it 'tends to advance the objects of the conspiracy as opposed to
thwarting its purpose.'" (quoting United Statement v. Fahey, 769
F.2d 829, 838 (1st Cir. 1985)). The "statement 'need not be
necessary or even important to the conspiracy, or even made to a
co-conspirator, as long as it can be said to advance the goals of
the conspiracy in some way.'" Piper, 298 F.3d at 54 (quoting
United States v. Martínez-Medina, 279 F.3d 105, 117 (1st Cir.
2002)). However, "[a] judicial determination that a
coconspirator's statement tended to further the conspiracy must be
supported by some plausible basis in the record." Id. As such,
"the 'in furtherance' requirement represents a real limitation on
the admissibility of coconspirator statements," and the proponent
"is not entitled to a free pass." Id.
The district court found the "in furtherance" requirement was
satisfied on two related grounds. First, the district court
explained that Spencer became suspicious about the growing
operation, and Jim's decision to reveal the operation to her,
coupled with his instruction not to tell anyone, was intended "to
quell her suspicions and to get her to be quiet about them."
Alternatively, the district court found that Spencer "was
suspicious about what [Jim] was doing generally," and rather than
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risk that she would eventually "unearth what exactly he was doing,"
Jim "decided to preempt, bring her in, show her the family
business, and at that point tell her to keep quiet."
As an initial matter, we assume, since no party has argued
otherwise, that one of the main objects of the conspiracy was to
keep the growing operation secret. See Grunewald v. United States,
353 U.S. 391, 405 (1957) (discussing acts of concealment in
furtherance of a conspiracy). Nevertheless, we conclude the
district court erred in finding Jim's statements were in
furtherance of this objective.
As to the first ground, there is no support for the district
court's finding that Spencer harbored suspicions about the growing
operation. She testified only to her concern that Jim was not
gainfully employed and thus could not provide for their soon-to-
be-born child.10 Jim then revealed the operation to her in response
to a legitimate employment concern, telling her not to worry
because he was making money growing marijuana. Jim's revelation
under these circumstances--attempting to placate a significant
other's financial worries--cannot reasonably be said to further
the goals of the conspiracy.11 On the contrary, as James asserts,
10In fact, consistent with Jim's explanation to Spencer,
James testified that Paul and Jim helped with his contracting work
for Boaleeco.
11Perhaps Jim's instruction to Spencer to keep quiet, in
isolation, could be deemed in furtherance of the conspiracy if it
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the statements were in furtherance of Jim's relationship with
Spencer. Cf. LiCausi, 167 F.3d at 50 (explaining that the co-
conspirator's statement "is more appropriately characterized as
made simply to avoid an argument with [the co-conspirator's]
girlfriend" and thus was not admissible under the in furtherance
hearsay exception).
The district court's alternative explanation fares no better.
Revealing the operation, in response to a generalized suspicion
regarding Jim's employment status, does not further the goal of
concealing the conspiracy. Jim's statements constituted "the
polar opposite of an attempt to conceal the conspiracy." Piper,
298 F.3d at 56. In fact, his disclosure led directly to the
conspiracy's downfall, as Spencer divulged the operation to the
authorities. In this regard, Jim's statements proved "antithetic
to the central object of the charged conspiracy." Id. at 55.
Further, in revealing the operation, Jim was not attempting to
recruit Spencer or otherwise seek her assistance in the scheme.
Rather, he told her the other Ford family members "couldn't know
that [she] was being let in on this secret." Under these
had been the only out-of-court statement admitted. Here, however,
the "keep quiet" statement came directly after Spencer recounted
Jim's statement as to the family members' roles in the growing
operation, and both statements were admitted together as part of
the "in furtherance" equation. Under these circumstances,
therefore, an overly narrow parsing of the combined statements is
not appropriate.
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circumstances, we believe the district court's rationale stretched
the in furtherance exception too far.12
We conclude, however, that this error does not warrant
reversal. "A non-constitutional evidentiary error is harmless
(and, therefore, does not require a new trial) so long as it is
12 Our conclusion also finds support outside of this circuit.
See United States v. Manfre, 368 F.3d 832, 838-39 (8th Cir. 2004)
(explaining that "[a] statement of a conspirator which conceals
the conspiracy without revealing any of the conspirators' illegal
objectives from one who appears suspicious is in furtherance of
the conspiracy," but "'[a] statement that simply informs a listener
of the declarant's criminal activities is not made in furtherance
of the conspiracy.'" (quoting United States v. Mitchell, 31 F.3d
628, 632 (8th Cir. 1994)); City of Tuscaloosa v. Harcros Chemicals,
Inc., 158 F.3d 548, 559 (11th Cir. 1998) ("A statement that merely
discloses the existence of a conspiracy to a non-conspirator, that
merely 'spills the beans,' with no intention of recruiting the
auditor into the conspiracy does not further the conspiracy.");
United States v. Shores, 33 F.3d 438, 444 (4th Cir. 1994)
("Statements made by a co-conspirator to a third party who is not
then a member of the conspiracy are considered to be 'in
furtherance' of the conspiracy if they are designed to induce that
party either to join the conspiracy or to act in a way that will
assist it in accomplishing its objectives . . . but not if they
were intended to be nothing more than idle chatter or casual
conversation about past events." (internal citations omitted));
United States v. Layton, 720 F.2d 548, 556 (9th Cir. 1983)
("Although statements designed to induce a listener to join a
conspiracy are admissible, mere 'casual admission[s] of
culpability to someone [the declarant has] individually decided to
trust' are not admissible." (quoting United States v. Fielding,
645 F.2d 719, 726 (9th Cir. 1981)), overruled in part on other
grounds by United States v. W.R. Grace, 526 F.3d 499 (9th Cir.
2008). But see United States v. Phillips, 219 F.3d 404, 419 (5th
Cir. 2000) ("Because Jean attempted to explain to her daughter the
nature of the conspiracy in an effort to exact sympathy so that
the scheme could remain a secret, the statements were undoubtedly
made 'in furtherance' of the conspiracy, and as such were properly
admitted.").
- 27 -
highly probable that the error did not influence the verdict."
Piper, 298 F.3d at 56.
There is no bright-line rule for divining when
particular errors that result in a jury's exposure to
improper evidence are (or are not) harmless. Rather, a
harmlessness determination demands a panoramic, case-
specific inquiry considering, among other things, the
centrality of the tainted material, its uniqueness, its
prejudicial impact, the uses to which it was put during
the trial, the relative strengths of the parties' cases,
and any telltales that furnish clues to the likelihood
that the error affected the factfinder's resolution of
a material issue.
Id. at 57 (quoting United States v. Sepulveda, 15 F.3d 1161, 1182
(1st Cir. 1993)).
The error here is clearly harmless as to three of the counts.
The improperly admitted statements were not relevant to the firearm
charge. Moreover, the facts supporting the manufacturing and
maintaining a residence for marijuana manufacturing counts were
conceded at trial, rendering the hearsay testimony plainly
cumulative of other evidence.
Although somewhat of a closer question, we also conclude the
district court's error was harmless as to the conspiracy count.
Even without Spencer's hearsay testimony, there is strong
additional evidence pointing to a conspiracy, and we can say "with
fair assurance . . . that the judgment was not substantially swayed
by the error." United States v. Sasso, 695 F.3d 25, 29 (1st Cir.
2012) (quoting Kotteakos v. United States, 328 U.S. 750, 765
- 28 -
(1946)). The conspiracy evidence included admitted emails
(described in detail in section I supra), in which James and Paul
indicate, in their own words, that the operation was a family
affair. In addition to the emails, James admitted during his
testimony that the notebooks and calendars, which contained
various notations and figures corresponding to the production and
sale of marijuana, were maintained by Darlene.
Given the "overwhelming" evidence of a family-wide
conspiracy, United States v. Tejeda, 974 F.2d 210, 215 (1st Cir.
1992), we conclude "it is 'highly probable' that the result would
have been the same" in the absence of Spencer's hearsay testimony.
United States v. Colon-Munoz, 192 F.3d 210, 229 (1st Cir. 1999)
(quoting United States v. Vigneau, 187 F.3d 82, 85-86 (1st Cir.
1999)).
C. Admissibility of Bruce's Testimony
James additionally challenges the admission of Bruce's
testimony, in which he described the prior Massachusetts growing
operation, under Rules 404(b) and 403. As James raised this
objection at trial, we review the district court's determination
for abuse of discretion. United States v. Pelletier, 666 F.3d 1,
5 (1st Cir. 2011).
Under Rule 404(b), "'[e]vidence of a crime, wrong, or other
act is not admissible to prove a person's character in order to
- 29 -
show that on a particular occasion the person acted in accordance
with the character,' i.e., as propensity evidence." United States
v. Appolon, 715 F.3d 362, 372 (1st Cir. 2013) (quoting Fed. R.
Evid. 404(b)(1)). "Evidence of other acts may be admissible,
however, if it has 'special relevance,' such as proving 'motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident,' Fed. R. Evid. 404(b)(2)."
Id. at 372-73 (internal citation omitted). We utilize a two-part
test in evaluating admissibility under Rule 404(b). First, we ask
whether the evidence has "special relevance"; then, we apply Rule
403 and consider whether its probative value is substantially
outweighed by the danger of unfair prejudice. Pelletier, 666 F.3d
at 5.
Even assuming Bruce's testimony was specially relevant for
one or more non-propensity purposes, its admissibility under Rule
403 is questionable. To be sure, even though James did not contest
the allegation that he intentionally grew the marijuana in Maine,
the government still retained the burden to prove each element of
the charges beyond a reasonable doubt and, as a general matter,
was "entitled to prove its case by evidence of its own choice."
Old Chief v. United States, 519 U.S. 172, 186 (1997); see United
States v. Varoudakis, 233 F.3d 113, 121 (1st Cir. 2000) ("[W]e
have held that evidence of prior bad acts may be probative even
- 30 -
when it is relevant to an issue that the defendant does not
contest," because "the fact that the defendant does not contest
the issue for which the prior bad act evidence is offered does
not, 'by itself, remove those issues from the case.'" (quoting
United States v. Ferrer-Cruz, 899 F.2d 135, 138 (1st Cir. 1990)).
But the fact that James did not dispute (and explicitly
conceded) this central allegation renders the probative value of
Bruce's testimony significantly reduced. See Varoudakis, 233 F.3d
at 121-24. Given the other evidence presented and defense
counsel's concession during opening statements that James grew the
marijuana, the government arguably did not need the testimony
regarding the Massachusetts growing operation. See id. at 122
(under Rule 403, courts should weigh the risk of unfair prejudice
against "the government's need for the evidence," among other
factors (citing Old Chief, 519 U.S. at 184)); cf. United States v.
Moccia, 681 F.2d 61, 64 (1st Cir. 1982) ("[T]here was so much other
evidence of guilt in the case that it is difficult to believe the
prior conviction was needed."). Also weighing against the
probative value of the prior growing operation is its remoteness
in time, as the Massachusetts bust occurred nine years before the
search in Maine. See United States v. Mare, 668 F.3d 35, 41 (1st
Cir. 2012).
- 31 -
Moreover, the risk of unfair prejudice stemming from Bruce's
testimony was high. Although this evidence "is not particularly
shocking" and "[t]here is little danger that it swayed the jury
toward a conviction on an emotional basis," the risk is that the
jury used it to infer criminal propensity. Varoudakis, 233 F.3d
at 122. That risk is especially pronounced where, as here, the
prior conduct is identical to the charged crime. See id. at 123;
see also Old Chief, 519 U.S. at 185, 191. In fact, the grow
operations were extremely similar; they were both large and highly
sophisticated, with plants in different stages of growth and a
variety of equipment.
Furthermore, in view of the negligible probative value of the
evidence, it is not clear the district court's limiting
instructions were sufficient to curb its prejudicial effect. See
United States v. Garcia-Rosa, 876 F.2d 209, 222 (1st Cir. 1989)
("But the prejudice in this case was so severe and unfair that it
cannot be remedied merely through a limiting instruction. In fact,
if limiting instructions could remedy all such errors, the
government would easily be able to circumvent Rules 404(b) and
403."), vacated on other ground sub nom., Rivera-Feliciano v.
United States, 498 U.S. 954 (1990).
- 32 -
At the same time, however, the nature of James's defense and
the overwhelming evidence of guilt render any error harmless.13
James conceded throughout the trial that he grew the marijuana in
Maine. Moreover, the jury had already heard, without objection,
the recorded interview of James, in which he discussed the
Massachusetts growing operation.14 Under these circumstances,
therefore, we are confident the verdict would not have been
different if the district court had excluded Bruce's testimony.
See United States v. Hicks, 575 F.3d 130, 143 (1st Cir. 2009).
D. Eighth Amendment Claim
Lastly, James contends his ten-year mandatory-minimum
sentence for manufacturing marijuana is grossly disproportionate
to the offense and, therefore, violates the Eighth Amendment. He
points to the public's evolving views on marijuana, including
state-law decriminalization and legalization (medicinal and
recreational) measures. He also cites the federal government's
general policy of not prosecuting cultivation and distribution
activities that are in compliance with "strong and effective [state
marijuana] regulatory and enforcement systems." Memorandum from
13Accordingly, we need not definitively decide whether the
district court abused its discretion in performing the Rule 403
balancing.
14
Not only did James fail to object to the admission of the
recording at trial, but he has not challenged it on appeal.
- 33 -
James M. Cole, Deputy Att'y Gen., U.S. Dep't of Justice, for All
U.S. Att'ys 2 (Aug. 29, 2013), available at
https://www.justice.gov/iso/opa/resources/3052013829132756857467
.pdf. We review this Eighth Amendment challenge de novo. United
States v. Raymond, 697 F.3d 32, 40 (1st Cir. 2012).
"The Eighth Amendment, which forbids cruel and unusual
punishments, contains a 'narrow proportionality principle' that
'applies to noncapital sentences.'" Ewing v. California, 538 U.S.
11, 20 (2003) (plurality opinion) (quoting Harmelin v. Michigan,
501 U.S. 957, 996-97 (1991) (Kennedy, J., concurring in part and
concurring in judgment)).15 This principle, however, "'does not
require strict proportionality between crime and sentence' but
rather 'forbids only extreme sentences that are grossly
disproportionate to the crime.'" Graham v. Florida, 560 U.S. 48,
60 (2010) (quoting Harmelin, 501 U.S. at 997, 1000-01 (Kennedy,
J., concurring in part and concurring in judgment)). In
15
Although the Supreme Court's "precedents in this area have
not been a model of clarity," Lockyer v. Andrade, 538 U.S. 63, 72
(2003), the Court has since relied on Justice Kennedy's concurrence
in Harmelin, calling it "[t]he controlling opinion." Graham v.
Florida, 560 U.S. 48, 60 (2010); see also Ewing, 538 U.S. at 23-
24 (plurality opinion); United States v. Cruz-Fernández, 607 F.
App'x 1, 3 (1st Cir. 2015) (unpublished opinion). Moreover, as
Justice Kennedy explained in Harmelin, despite this lack of
clarity, the Court's Eighth Amendment decisions "yield[] some
common principles that give content to the uses and limits of
proportionality review." Harmelin, 501 U.S. at 998 (Kennedy, J.,
concurring in part and concurring in judgment)).
- 34 -
determining whether a sentence is grossly disproportionate, we
first undertake a threshold comparison between "the gravity of the
offense and the severity of the sentence." Id. at 60. If, after
making this threshold comparison, "we conclude there is no 'gross
disproportionality . . . the inquiry ends there.'" United States
v. Lyons, 740 F.3d 702, 731 (1st Cir. 2014) (quoting Raymond, 697
F.3d at 40).
We also must be mindful of our "substantial deference to the
broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes." Solem
v. Helm, 463 U.S. 277, 290 (1983). After all, "the Constitution
'does not mandate adoption of any one penological theory.'" Ewing,
538 U.S. at 25 (quoting Harmelin, 501 U.S. at 999 (Kennedy, J.,
concurring in part and concurring in judgment)). In light of this
deference and the rigorous standard for demonstrating gross
disproportionality, "a reviewing court rarely will be required to
engage in extended analysis to determine that a sentence is not
constitutionally disproportionate." Solem, 463 U.S. at 290 n.16.
Indeed, "'[o]utside the context of capital punishment, successful
challenges to the proportionality of particular sentences have
been exceedingly rare.'" Ewing, 538 U.S. at 21 (plurality opinion)
(quoting Rummel v. Estelle, 445 U.S. 263, 272 (1980)); see id. at
19-20 (upholding California's "three strikes" law and the
- 35 -
imposition of a 25 years to life sentence for stealing golf clubs);
Harmelin, 501 U.S. at 996 (upholding a sentence of life in prison
without parole for possession of more than 650 grams of cocaine);
Hutto v. Davis, 454 U.S. 370, 374-75 (1982) (upholding a sentence
of forty years for possession and distribution of nine ounces of
marijuana).
James's challenge fails at the threshold inquiry. We
recognize that, for Eighth Amendment purposes, "courts must look
beyond historical conceptions to 'the evolving standards of
decency that mark the progress of a maturing society.'" Graham,
560 U.S. at 58 (quoting Estelle v. Gamble, 429 U.S. 97, 102
(1976)). Those evolving standards certainly now point towards a
markedly different level of acceptance of marijuana than in the
past. "But within extremely broad limits, Congress--which unlike
the judiciary is popularly elected--sets both sentencing policy
and the prescribed range of sentences for federal drug crimes . .
. ." United States v. Jones, 674 F.3d 88, 96 (1st Cir. 2012).
And, despite the evolving consensus on marijuana policy,
manufacturing marijuana remains a serious crime under federal law,
subject to the penalties set forth in 21 U.S.C. § 841(b). See
United States v. Ford, 625 F. App'x 4, 7 (1st Cir. 2015)
(unpublished opinion).
- 36 -
In the end, James's arguments as to federal marijuana
sentencing policy are more appropriately directed at the Executive
and Legislative branches. "Relief in cases such as this--if there
is any--must come, in the first instance, in the exercise of
restraint and wisdom in the charging decision of the prosecutor,
or in the exercise of the clemency power; both are executive not
judicial functions and leave us powerless to intercede to grant
relief."16 Paladin, 748 F.3d at 454.
III. Conclusion
For the reasons given, we affirm.
16At oral argument, the government sought to deflect its role
in the sentence, as if it had no choice in the matter, and place
responsibility in the hands of Congress. But see Jones, 674 F.3d
at 96-97 ("[T]he prosecution also had discretion in this case to
not seek the mandatory sentence.").
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