BANGOR, Maine — A federal grand jury on Thursday indicted for a second time four men and a corporation on charges related to one of the state’s most sophisticated outdoor marijuana-growing operations that existed between Jan. 1, 2006 and Sept 22, 2009.
The new indictment includes paragraphs that specifically allege Malcolm French, 52, of Enfield and Rodney Russell, 50, of South Thomaston grew more than 1,000 marijuana plants on a plot of land in Township 37 in Washington County.
If convicted of producing that quantity of drugs, both men would face a mandatory minimum sentence of 10 years in prison and a maximum of life. The men would not have faced the mandatory minimum sentence unless the drug quantity was stated specifically in the indictment due to a recent high court decision.
The U.S. Supreme Court ruled in June in Alleyne v. United States that because mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an “element” of the crime that must be submitted to the jury. In August, U.S. Attorney General Eric Holder Jr. issued a memorandum telling federal prosecutors they “must ensure that the charging document includes those elements of the crime that trigger the statutory minimum penalty.”
French and Russell were indicted on the following charges: conspiracy to manufacture 1,000 or more marijuana plants, manufacturing 1,000 or more marijuana plants, maintaining a drug-involved place, harboring illegal aliens and conspiracy to distribute and possess with the intent to distribute marijuana.
The allegation that the two conspired to distribute and possess marijuana was not included in the original indictment.
Kendall Chase, 57, of Bradford and Robert “Bobby” Berg, 50, of Dexter also were named in the superseding indictment but would not be subject to the same mandatory minimum sentence because they have not been charged with producing 1,000 or more marijuana plants.
Chase was indicted on charges of conspiracy to manufacture 1,000 or more marijuana plants, manufacturing 1,000 or more marijuana plants, manufacturing 1,000 or more marijuana plants and conspiracy to distribute and possess with intent to distribute marijuana. Originally, Chase was not charged with being part of a conspiracy to distribute and possess the drug. He faces a sentence of up to life in prison but no mandatory minimum sentence if convicted.
Assistant U.S. Attorney Joel Casey on Friday declined to explain why Chase was not charged the same way French and Russell were, so that Chase also would be subject to the mandatory minimum sentence of 10 years if convicted.
Berg was indicted on charges of harboring illegal aliens and being an accessory after the fact to manufacturing 1,000 or more marijuana plants. In the original indictment, he was charged with being part of the conspiracy to manufacture the marijuana. If convicted, he faces up to 15 years in prison on the drug charge.
Haynes Timberland Inc., the corporation that owns the land where the marijuana plot was discovered by law enforcement in September 2009, also was indicted.
The superseding indictment includes the forfeiture of land owned by French’s firms including the Township 37 parcel.
Arraignment dates on the indictments have not been set.
Moises Soto, 53, of Nuevo Leon, N.M., who was named in the original indictment, was not named in the new indictment. He pleaded guilty July 30 to being part of a drug conspiracy and harboring an illegal alien and will not be subject to the mandatory minimum sentence.
French’s attorney, Walter McKee of Augusta said Friday he was not surprised the U.S. Attorney’s Office sought a superseding indictment.
“This was expected. I anticipate trial will still go forward in January as planned,” he said.