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UNITED STATES v. TALLY

January 5, 1996

UNITED STATES OF AMERICA
v.
JACK TALLY, Defendant; UNITED STATES OF AMERICA v. JOHN BIERWILER and LOREN VanCUREN, Defendants; UNITED STATES OF AMERICA v. ANNETTE PETERSON, Defendant; UNITED STATES OF AMERICA v. DANIEL L. EATON, Defendant



The opinion of the court was delivered by: MCCLURE

 January 5, 1996

 BACKGROUND:

 Each of these cases is related to an organized marijuana trafficking conspiracy in and around the Corning, New York, area. When one of the central figures in that conspiracy, Gerald N. Eaton, was arrested and charged, he and other players in the operation devised a scheme to deflect blame for Eaton's role in the affair to Eaton's cousin, Christopher Peterson. Peterson, although a member of the conspiracy, was not the "kingpin" as portrayed during his trial, nor was he responsible for all of the relevant conduct on which his sentence was based. He was convicted and sentenced to thirty years in prison.

 Following Peterson's trial, Eaton was sentenced. During his sentencing hearing, the government offered evidence associating Eaton with a particular field of marijuana found in North Central Pennsylvania. The association of Eaton with that field was the key to the entire investigation, since a number of fields in which marijuana was cultivated had been found. Tying Eaton to that particular field, with its distinctive characteristics, would link him to the larger marijuana operation.

 In order to dissociate himself from that field, thereby reducing his criminal culpability, Eaton presented a number of alibi witnesses. The court rejected the evidence Eaton presented and found as a matter of fact that Eaton was in the field. Subsequent to his sentencing, Eaton provided information to investigators that much of the testimony presented at the sentencing hearing, as well as at Christopher Peterson's trial, had been false.

 Based on various levels of involvement in either the original conspiracy to distribute controlled substances, the conspiracy to lay the blame at the feet of Christopher Peterson, or the conspiracy to provide false evidence at Eaton's sentencing hearing, the defendants named in the above caption were indicted, and each entered a plea of guilty. All but Loren VanCuren agreed to cooperate with the government.

 The computation of sentences began with the determination of a base offense level based on the quantity of marijuana which could be attributed to the individual defendant's conduct. Other defendants also were indicted, pled guilty, and were sentenced. In all, approximately twelve people were convicted of crimes relating to Gerald N. Eaton's various schemes.

 Effective November 1, 1995, the United States Sentencing Commission amended the Sentencing Guidelines with respect to sentencing related to marijuana charges. In the past, when the number of marijuana plants exceeded 50, each plant was treated as the equivalent of 1 kilogram (1000 grams) of marijuana for sentencing purposes, while each plant was treated as the equivalent of 100 grams of marijuana if the number of plants was less than 50. U.S.S.G. § 2D1.1(c), notes following Drug Quantity Table. As amended, the Sentencing Guidelines provide that each plant of marijuana equates to 100 grams of marijuana regardless of the number of plants. U.S.S.G. § 2D1.1(c), note E following Drug Quantity Table. As applicable to the moving defendants, each plant now equates to 1/10 its previous value, which in turn would reduce the base offense level associated with that number of marijuana plants. The amendment may be applied retroactively.

 Before the court are motions by the above-named defendants to modify sentence pursuant to 18 U.S.C. § 3582. Evidentiary hearings having been conducted with respect to each defendant's motion, the matter is ripe for disposition.

 DISCUSSION:

 I. FINDINGS OF FACT

 A. General Findings

 1. In May, 1989, a large clearing was discovered on State Game Lands in Potter County, one of the northernmost counties of Pennsylvania (the "Northern Tier"), which proved to have been planted with marijuana.

 2. On August 8, 1989, authorities eradicated approximately 11,375 marijuana plants from this field.

 3. During the summer of 1990, three fields of marijuana were discovered on State Game Lands in Tioga County, another Northern Tier County, containing a combined total of approximately 8,868 plants.

 4. The manner in which the marijuana was cultivated in the Northern Tier fields included a number of distinctive features, such as: the use of fishing line to ensure straight rows of plants; roto-tilling; the clearing of trees in a circle and piling of the trees around the outside of the circle so that large animals could not get into the field; the placement of "chicken wire" fencing around the outside of the fields so that small animals could not get into the field; and leaving a tree standing in the middle of the field to restrict access to the field by helicopter.

 5. In the summer of 1991, surveillance, including the use of motion detectors, was again conducted on a field of marijuana in Potter County which contained approximately 1,340 plants.

 6. In this instance, the surveillance was successful, and two individuals were observed in the field on August 19, 1991.

 7. One of the individuals, William Peterson, was arrested later when he attempted to get into his truck, which was parked in the vicinity of the field.

 8. William Peterson admitted to having been in the field, and initially indicated that his cousin, Gerald N. Eaton, had been in the field with him.

 10. Based on the identification of Gerry Eaton by a state trooper who saw Eaton in the field, Gerry Eaton was indicted and charged with cultivating the Potter County field.

 11. In 1992, Jack Tally and Gerry Eaton agreed to lie about Christopher Peterson's involvement in the marijuana manufacturing and distribution scheme.

 12. From late September through early November, 1992, Special Agent Keith P. Miller of the Drug Enforcement Agency interviewed a number of individuals from the Corning, New York, area at the Painted Post Police Department.

 13. Also present during the interviews were Trooper Bernie Howard of the Pennsylvania State Police, Assistant United States Attorney Eric Pfisterer, and at times Chief of Police Donald W. Yost of Painted Post, New York.

 14. These interviews included discussions with a number of witnesses who had provided alibi testimony on behalf of Gerry Eaton.

 15. Both Loren VanCuren and John Bierwiler were interviewed, and were told by Agent Miller that the case was very serious and involved "tens of thousands of marijuana plants," although no more specific number was provided.

 16. In January, 1993, during Christopher Peterson's trial, Jack Tally, Annette Peterson, David Cavallaro, and Gerry Eaton testified falsely that Christopher Peterson was the leader and organizer of the marijuana manufacturing and distribution ring when, in fact, Gerry Eaton was the leader and organizer.

 17. During Gerry Eaton's sentencing hearing, the main issue was whether Gerry Eaton was the second person in the field with William Peterson on August 19, 1991.

 18. If the government bore its burden of establishing that Gerry Eaton was in the field with William Peterson, Eaton could be held accountable for 21,613 marijuana plants.

 19. During Gerry Eaton's sentencing hearing, Eaton called a number of witnesses to provide an alibi for Eaton with respect to the field.

 20. Eaton also testified himself, and denied having been in the field of marijuana on August 19, 1991.

 21. This court rejected the testimony of Eaton and his alibi witnesses and found as a matter of fact that Eaton was in the field with William Peterson on August 19, 1991.

 22. Gerry Eaton was sentenced to a term of incarceration of 87 months.

 23. Following his sentencing, Gerry Eaton indicated to investigators and counsel for the government that he had further information to provide, and later revealed a large group of people had conspired to obstruct justice and present false testimony before the court.

 24. Based on this latest version of cooperation by Gerry Eaton, more individuals were indicted.

 25. All of the persons who were indicted in the cases related to the marijuana conspiracy and later attempts to cover up for Gerry Eaton, save Christopher Peterson, entered pleas of guilty.

 26. Each of the persons who entered guilty pleas in these related cases, save Loren VanCuren, provided substantial assistance to the government. 27. The persons convicted in these related cases and the terms of imprisonment imposed are/were: Christopher Peterson, No. 1:CV-92-0152-01 360 months Gerry Eaton, No. 1:CR-91-0170-01 87 months Daniel Clarkson, No. 4:CR-93-0288-01 78 months Jack Tally, No. 1:CR-93-0253 64 months David Cavallaro, No. 1:CR-92-0152-02 63 months Daniel L. Eaton, No. 4:CR-94-0099-02 36 months William Peterson, No. 1:CR-91-0170-02 30 months Annette Peterson, No. 4:CR-94-0073 30 months Gerald Eaton, No. 4:CR-94-0099-01 24 months Sue Ellen Courtney, No. 4:CR-94-0074 12 months, plus 1 day Pamela Elliott, No. 4:CR-94-0072 8 months

 29. When Gerry Eaton's activities with respect to the perjury and subornation of perjury at Christopher Peterson's trial were revealed, as well as Eaton's role in the marijuana conspiracy, the government moved for a downward departure, and the court reduced Christopher Peterson's sentence to 30 months.

 B. Daniel Eaton's Conduct

 30. After fleeing the field on August 19, 1991, Gerry Eaton placed a telephone call to his brother, Daniel Eaton. Daniel Eaton then drove from Savona, New York, to Austin, Pennsylvania, to pick up Gerry Eaton, and drove him to Corning, New York.

 31. In Corning, Daniel Eaton, Gerry Eaton, Gerald Eaton, and unindicted co-conspirators met to discuss measures that could be taken to obstruct the investigation into the marijuana growing enterprise.

 32. In January, 1993, Daniel Eaton prepared a written statement claiming that it was not Gerry Eaton who had called him on August 19, 1991.

 33. Daniel Eaton admitted his participation in obstructing the investigation and indicated that he was not paid for doing so.

 34. In addition to his participation in the conspiracy to obstruct the investigation, Daniel Eaton participated in the growing and distribution of marijuana as set forth in more detail below.

 35. In 1990, Daniel Eaton and his wife approached the owner of a cabin located along the Northern Tier and entered into a two-week rental agreement, for which they paid cash.

 36. The cabin was used to process the marijuana grown by members of the group in the summer of 1990.

 37. The Pennsylvania State Police eradicated 8,868 plants in the summer of 1990 which would have been processed at the cabin rented by Daniel Eaton; the number of plants actually processed at the cabin has not been established.

 38. When he was arrested by the New York State Police in 1991, Daniel Eaton was in possession of ten pounds of marijuana.

 39. An informant indicated that Daniel Eaton's distribution of marijuana in 1991 was an ongoing occurrence, and that Daniel Eaton had possessed similar amounts over several months.

 40. The 1,340 plants in the field in which William Peterson and Gerry Eaton were discovered also are attributable to Daniel Eaton through his participation in the distribution conspiracy and the conspiracy to obstruct the investigation.

 41. Daniel Eaton profited financially from distributing marijuana and purchased real estate in the Corning area.

 42. Daniel Eaton loaned Gerry Eaton $ 7,000.00 to finance a business, specifically a retail establishment called Third World.

 43. The government characterizes the cooperation provided by Daniel Eaton as the key to finally revealing the activities of the group (at least the known activities), including those of his ...


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