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U.S. v. MORGRET

November 22, 2005.

UNITED STATES OF AMERICA
v.
MICHAEL ALLEN MORGRET.



The opinion of the court was delivered by: MALCOLM MUIR, Senior District Judge

OPINION

I. Introduction.

This case originated on April 11, 2002, with the filing of a six-count indictment charging Defendants Michael Allen Morgret (hereinafter Morgret"), Roger Gordon Schmidt, James Russell Crossley, and Mandy Jo Bennett Duck with various offenses. On April 29, 2002, John D. Felix, Esquire, was appointed to represent Morgret.

  On May 23, 2002, a superseding indictment was filed. In addition to the Defendants named in the original indictment, Morgret's brother, Robert Morgret, was added as a Defendant in that document. A second superceding indictment containing 19 counts was filed on November 14, 2002.

  On August 1, 2003, a plea agreement relating to Morgret was filed. On August 25, 2003, Morgret pled guilty to counts 1 and 6 in the second superseding indictment. Those charges are: 1) conspiracy to possess with the intent to distribute, and the distribution of, in excess of 50 grams of crack cocaine and 5 kilograms of cocaine and hydrocodone, in violation of 21 U.S.C. § 846; and 2) conspiracy to intimidate witnesses, illegal possession and distribution of firearms, arson, and mail fraud, in violation of 18 U.S.C. § 371. A lengthy statement of facts and reasons in support of the guilty plea consisting of 9 typed, double-spaced pages was also filed on August 25, 2003. An amended statement of the same length was filed later that day.

  On December 5, 2003, we received Morgret's pre-sentence report. United States Probation Officer Eric W. Noll determined Morgret's Total Offense Level to be 36, his Criminal History Category to be VI, and his advisory Guideline Imprisonment Range to be 324 to 405 months. Morgret disputed various facts asserted in the pre-sentence report and he filed objections thereto.

  On December 10, 2003, we held a pre-sentence conference in this case. At that point we learned that Morgret wished to file a motion to withdraw his guilty plea and to discharge Attorney Felix. On December 19, 2003, Attorney Felix filed on Morgret's behalf a motion to withdraw Morgret's guilty plea. On December 23, 2003, Attorney Felix filed a motion to withdraw his appearance, which we granted by order dated December 30, 2003.

  Between December 31, 2003, and March 5, 2004, three different attorneys were appointed to represent Morgret. The final counsel appointed was Douglas B. Chester, who was appointed on March 5, 2005, and remains Morgret's counsel. The substitutions of counsel for Morgret prompted us to extend the deadline for the brief in support of his motion to withdraw guilty plea. On June 17, 2004, we issued an order in which we allowed Morgret until June 23, 2004, to file a brief in support of the motion to withdraw his guilty plea, or a separate motion to withdraw the motion to withdraw his guilty plea.

  Morgret sought and obtained an extension of the deadline in our order of June 17, 2004. On June 24, 2004, we extended Morgret's deadline to July 28, 2005. Also on June 24, 2004, the United States Supreme Court issued its decision in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004).

  On August 3, 2004, Morgret filed an untimely motion to withdraw his motion to withdraw his guilty plea. We accepted the motion as timely filed and by order dated August 9, 2004, we allowed Morgret to withdraw his motion to withdraw his guilty plea. In that order we also scheduled a second pre-sentence conference for September 23, 2004.

  On September 16, 2004, Morgret filed 1) additional objections to his pre-sentence report, and 2) a motion to continue the second pre-sentence conference. On September 20, 2004, we granted the motion and continued the second pre-sentence conference to October 28, 2004.

  The pre-sentence conference was held on October 28, 2004, and on October 29, 2004, we issued an order in which we set a deadline of November 19, 2004, for Morgret to file a brief in support of his objections to the pre-sentence report, or a stipulation addressing all of the factual disputes relating to those objections. Morgret filed a number of motions to extend the November 19, 2004, deadline and we granted all of those motions, which in effect extended the November 19, 2004, deadline to February 16, 2005.

  On January 12, 2005, the United States Supreme Court issued its decision in the case of United States v. Booker, ___ U.S. ___, 2005 WL 50108 (2005). On February 3, 2005, Morgret filed a document entitled "Defendant's Post-Booker Fanfan Objections to Pre-sentence Report." That document encompasses all of Morgret's pending objections to his pre-sentence report. On February 16, 2005, Morgret filed a motion for an extension of time to file a brief in support of his objections. By order dated February 16, 2005, we granted motion. On March 10, 2005, Morgret filed his brief. On March 25, 2005, the government timely filed its opposition brief. No reply brief was filed.

  The parties were unable to reach any stipulation with respect to the material disputed facts. On April 29, 2005, Morgret filed a motion to exclude certain dates for the hearing on his objections to the pre-sentence report. By order dated April 29, 2005, we granted that motion and placed this case on our June, 2005, Trial List for a hearing on Morgret's objections to his pre-sentence report.

  On May 14, 2005, Morgret filed a "Motion to Impanel Jury," and a supporting brief. On June 2, 2005, the government filed an opposition brief. No reply brief was filed and on June 24, 2005, we issued an order denying the motion to impanel a jury. In that order we also scheduled the hearing for July 22, 2005.

  The hearing commenced as scheduled and at the conclusion of the proceedings on that date we set August 19, 2005, as the next date for the hearing because of government counsel's unavailability until that date. On August 17, 2005, government counsel filed an unopposed motion to continue the hearing. On August 18, 2005, we granted that motion and set September 16, 2005, as the next date for the hearing. The hearing was held and concluded on September 16, 2005. During the hearing Morgret made an oral motion for the court to apply the "beyond a reasonable doubt" evidentiary standard to his objections to the pre-sentence report. After the conclusion of the hearing, on September 16, 2005, we issued an order in which we 1) required the parties to file annotated proposed findings of fact and conclusions of law by September 26, 2005, and 2) allowed Morgret until September 26, 2005, to file a brief in support of his oral motion concerning the burden of proof to be applied to his objections to the pre-sentence report. The government filed its annotated proposed findings of fact and conclusions of law on September 23, 2005. On September 29, 2005, after being granted an extension of time in which to do so, Morgret timely filed his annotated proposed findings of fact and conclusions of law, and his brief regarding the applicability of the "beyond a reasonable doubt" standard of proof to his objections. The government filed its opposition brief on October 4, 2005. The time allowed for Morgret to file his reply expired on October 24, 2005, and no such brief has been filed. Morgret's objections to his pre-sentence report and his motion to apply the "beyond a reasonable doubt" standard are ripe for disposition.

  The following are the Court's findings of fact, discussion, and conclusions of law. Findings of fact which are not disputed are noted with a "U" in parenthesis after each such finding or conclusion. Findings of fact which are not disputed but are objected to as being irrelevant are noted with a "U/O" in parenthesis after each such finding.*fn1

  II. Findings of Fact

 
1. Beginning in or about June of 2001 Michael Allen Morgret, Roger Gordon Schmidt, James Russell Crossley, Mandy Jo Bennett Duck, Eric Rupert, and Brian Andrus conspired to distribute crack cocaine and cocaine. 2. The conspiracy existed from June of 2001 through April of 2002.
3. In October of 2001, Roger Schmidt was dissatisfied with his existing sources of cocaine, and was seeking a new source for cocaine. (U)
4. In October of 2001, Michael Morgret was introduced to Roger Schmidt through a mutual acquaintance, Shawn Poorman. (U)
5. Eric Rupert was a friend of Michael Morgret, having known him for more than ten years. (U)
6. Rupert had been introduced to Schmidt by someone other than Morgret as a potential source for cocaine. (U)
7. Schmidt met with Morgret to see if Morgret and Rupert could obtain cocaine for Schmidt at a lower price than what Schmidt had been paying for it. (U)
8. Up until October or November of 2001, Morgret had used a source of cocaine in Philadelphia.
9. At some point prior to October of 2001, Morgret got into a dispute with that source and was no longer able to use it.
10. In October of 2001 Rupert knew of a source in New York City, "Frankie and Jose," in Washington Heights, where relatively pure cocaine could be purchased for approximately $1,000.00 per ounce. (U) 11. The cocaine source in New York City was Rupert's source, and not Morgret's.
12. Prior to his introduction to Rupert's source, Morgret did not have a "source" of his own in New York City. (U)
13. Morgret and Schmidt were interested in using Rupert's New York source to purchase cocaine in connection with the conspiracy.
14. In November of 2001 Schmidt, Morgret, and Rupert took a trip to New York City to purchase cocaine and they bought approximately an ounce of cocaine from Rupert's source in the Washington Heights area of New York City.
15. On that trip Schmidt provided all of the money for the purchase.
16. The cocaine purchased on that trip was consumed by Schmidt, Morgret, and Rupert upon their return to Renovo.
17. Two or three weeks later, towards the end of November or the beginning of December, 2001, Rupert, Morgret, and Andrus made another trip to purchase cocaine from Rupert's source in New York City. (U)
18. Approximately 1.5 ounces of cocaine was purchased on Rupert's second trip. 19. On both the first and second trips, powdered cocaine (cocaine hydrochloride) and not cocaine base (cocaine hydroxide) was purchased. (U)
20. On Rupert's third trip to New York City he purchased between 2 and 2.5 ounces of cocaine in connection with the conspiracy.
21. The most cocaine ever purchased on a trip involving Rupert was between 5 and 6 ounces of cocaine.
22. Rupert's trips to New York City to buy cocaine occurred at intervals of about two weeks.
23. Rupert personally participated in "six or seven" trips to purchase cocaine in New York City. (U)
24. Morgret went along on all of the trips to New York City in which Rupert was a participant.
25. Schmidt went along on approximately three trips to New York City with Morgret and Rupert. (U)
26. The average amount of cocaine purchased on each trip which included Rupert was between 1.5 and 2.5 ounces.
27. Rupert was not aware of every trip to New York City made by all of the co-conspirators to purchase cocaine.
28. Morgret made trips to New York City to purchase cocaine without Rupert.
29. In January of 2002, Rupert had a falling out with Schmidt, when Rupert consumed 17 or 18 grams of cocaine that Schmidt, not Morgret, had given to him to sell. (U)
30. Eric Rupert traveled with Morgret to New York City and Philadelphia where they obtained a total at least 500 grams but less than 2 kilograms of cocaine.
31. Eric Rupert admitted in his plea agreement and under oath at his guilty plea that he conspired with Morgret to distribute and possess with intent to distribute at least 500 grams but less than 2 kilograms of cocaine. (U)
32. Co-conspirator James Crossley traveled with Morgret on a regular basis to New York City for the purpose of obtaining cocaine.
33. Between October of 2001 and March of 2002 Crossley made seven or eight trips to New York City to purchase cocaine.
34. Crossley received baggies of cocaine powder from Schmidt and Morgret for Crossley to distribute to other people.
35. Co-conspirator Mandy Jo Bennett Duck also accompanied Morgret on these trips. (U)
36. Other individuals also accompanied Morgret on the drug buying trips. (U) 37. Morgret requested Andrus to travel to New York City to purchase cocaine.
38. Andrus traveled to New York City on approximately 12 occasions to obtain cocaine and on each occasion the co-conspirators obtained at least 6 ounces of cocaine for a total of approximately 72 ounces of cocaine.
39. The most cocaine purchased on a trip involving Andrus was eight or nine ounces.
40. Morgret and Schmidt jointly gave Andrus cocaine to sell for Morgret and Schmidt.
41. Andrus sold some of that cocaine.
42. Morgret once gave Andrus cocaine to sell so that Andrus would have money to pay a fine.
43. Morgret and Schmidt expected Andrus to sell other cocaine and return the proceeds from the sales to Morgret and Schmidt.
44. In late December of 2001 or early January of 2002, Andrus stole approximately 2 ounces of cocaine from Morgret and Schmidt.
45. Morgret took weekly trips to New York City for cocaine and supplied Schmidt with as much as four ounces of cocaine following these trips.
46. Morgret did not go on all of the trips to New York City to purchase cocaine. 47. Before making his weekly trip to New York City for cocaine, Morgret met with Schmidt.
48. Between October of 2001 and March of 2002 one or two trips per week were made in furtherance of the conspiracy to purchase cocaine in New York City.
49. An average of 4 ounces of cocaine was purchased on each trip.
50. To further the goals of the conspiracy, Schmidt provided the majority of the money and Morgret, through Rupert, secured the source of cocaine.
51. Morgret and Schmidt agreed that Morgret would take trips to New York City, where Morgret purchased cocaine and crack cocaine with money supplied by Schmidt and others, and Morgret would transport the drugs to Renovo and Lock Haven, Pennsylvania, where some of it was cut up and packaged for distribution.
52. As the trips to New York City became routine, the conspirators took orders from various people to purchase cocaine for them in New York City.
53. After a number of trips to New York City had been made to purchase cocaine, Morgret and Schmidt became partners with Morgret selling cocaine to people in Lock Haven, Pennsylvania, and Schmidt selling cocaine to people in Renovo, Pennsylvania. 54. The conspirators collected money for the cocaine purchases from various people.
55. When cocaine was purchased in New York City, a group of people gathered, most often at the hotel bar in Renovo belonging to Schmidt but sometime at a private residence, and over the ensuing days and nights they consumed a portion of the cocaine which had been purchased.
56. Some of those parties continued for several days at a time.
57. The portion which was not consumed was sold to fund the group's next bulk cocaine purchase.
58. The conspirators purchased crack cocaine in New York City at least twice; once they purchased an ounce and once they purchased 52.7 grams, which was approximately 4 grams less than 2 ounces.
59. After trips to New York City, powdered cocaine (cocaine hydrochloride) was cooked into crack cocaine (cocaine hydroxide) by a variety of individuals at the bar in Renovo and elsewhere. These individuals included Schmidt, Rupert, Morgret, and others. (U)
60. The crack cocaine so produced was usually immediately consumed by some of those present at the parties. 61. On a few rare occasions, a small piece of the crack cocaine cooked by the conspirators was sold.
62. Only those who sold cocaine in furtherance of the conspiracy were allowed to consume the crack cocaine for free.
63. The crack cocaine cooked at the parties was produced in teaspoons or tablespoons.
64. If the party was at Schmidt's bar, the bar was closed to the public and most of those present consumed cocaine powder, or crack cocaine, or both.
65. On the trips to New York City, there were three or four people in the car, and each would receive cocaine powder as payment for having participated in the trip.
66. Numerous people contributed to the fund used to purchase cocaine in New York City.
67. Schmidt provided the majority of the money to purchase cocaine on the trips to New York City.
68. Morgret contributed between $200 and $400 to the purchase "kitty" when he had funds available.
69. Other individuals, including Rupert and Andrus, also contributed to the purchase "kitty" when they had funds available. 70. Morgret used Andrus to collect money from people who owed money for cocaine that had been purchased. Morgret referred to Andrus as his "collector."
71. Morgret assigned Crossley the responsibility of physically possessing the drugs on the return trip from New York City. Morgret referred to Crossley as his "holder."
72. Schmidt provided the vehicles used on most of the trips to New York City, either by making his own personal vehicle available, or by providing a credit card so that a rental vehicle could be obtained.
73. Morgret's personal vehicle was used on some of these trips.
74. Morgret also rented vehicles using Schmidt's credit card to make trips for the purpose of obtaining cocaine. (U)
75. Although Schmidt accompanied Morgret on approximately three cocaine buying trips to New York, with the most recent occurring in March of 2002, Morgret mainly traveled to New York without Schmidt. (U)
76. Schmidt gave Morgret a total of between $30,000.00 and $70,000.00 to fund the purchase of cocaine.
77. Schmidt also allowed Morgret to use Schmidt's truck to make the trips. 78. A .38 caliber pistol was concealed in a compartment of Schmidt's truck.
79. Schmidt told Morgret about the location of that firearm in the truck.
80. Morgret carried a 9 mm handgun during the existence of the conspiracy.
81. Morgret handled the .38 caliber handgun at Schmidt's bar and Duck's residence.
82. On one occasion Schmidt wrote $4,000 checks to Morgret and co-conspirator James Crossley to fund the purchase of cocaine. (U)
83. With that $8,000.00 Morgret purchased 8 ounces of cocaine and almost 2 ounces of crack cocaine on a single trip to New York City.
84. Schmidt provided cocaine to individuals who sold cocaine to users of that substance, and compensated the sellers based on the quantity sold, with either cash or a corresponding amount of drugs. (U)
85. The goal of Schmidt and Morgret was to pay for the cocaine and crack which they personally consumed by selling a portion of the drugs brought back from New York City.
86. After his arrest on state drug charges in March of 2002, Schmidt attempted to hide from the Pennsylvania State Police the firearms identified in Count Five of the Superseding Indictment, which he had kept at his residence in Phillipsburg, Pennsylvania.
87. Schmidt arranged for Michael Morgret to retrieve the guns. (U/O)
88. Michael Morgret requested his brother, Robert Morgret [sic] to keep the guns at Robert's residence in Flemington, Pennsylvania. (U/O)
89. On April 15, 2002, investigators executed a search warrant at Robert Morgret's residence and recovered the five (5) firearms identified in the indictment. (U)
90. In November 2001, Schmidt discussed with Michael Morgret and Brian Andrus that he could obtain approximately $140,000 in insurance proceeds if his hotel bar, Sutliff's Hotel at 157 Eight Street in Renovo, Pennsylvania, caught on fire. (U/O)
91. Schmidt, Michael Morgret and Brian Andrus talked about how the insurance proceeds from a fire at the hotel could be used to fund the purchase of six or seven kilograms of cocaine. (U/O)
92. Schmidt, Michael Morgret and Andrus discussed obtaining bulk quantities of cocaine with the insurance proceeds, selling the cocaine bought with the insurance proceeds, and then splitting up the proceeds of the cocaine sales, with Schmidt receiving an amount equaling his initial investment in the hotel. (U/O)
93. During the discussion, Schmidt, Michael Morgret and Brian Andrus agreed that the conspirators would set the fire at the hotel on a slow evening so that no one would get hurt, and selected Christmas Eve as the time for the fire. (U/O)
94. Schmidt told Michael Morgret and Brian Andrus not to use a car that anyone would recognize. (U)
95. On December 24, 2001, one of the conspirators obtained the use of a vehicle and an empty milk jug from a female friend. (U)
96. Michael Morgret and Andrus used gasoline to set the hotel on fire. (U/O)
97. On March 7, 2002, co-conspirator Mandy Jo [Bennett] Duck traveled with Michael Morgret and co-conspirator James Russell Crossley to New York where they obtained approximately 44 grams of cocaine powder and 18 grams of crack cocaine. (U)
98. Morgret, Duck, and Crossley then transported those substances back to Pennsylvania, where they met the undercover agent in the Wegman's parking lot. (U)
99. At that location, Morgret delivered to the undercover agent approximately 11 grams of crack cocaine and 17 grams of cocaine powder, and a search of the vehicle recovered the remaining drugs.
100. Morgret's co-conspirator Roger Gordon Schmidt stipulated under oath for purposes of his sentencing that he was responsible for the distribution of 2.5 kilograms of cocaine (500 kilograms marijuana equivalent) and 125 grams of cocaine base (1000 kilograms to 2500 kilograms marijuana equivalent). (U)
101. Morgret's co-conspirators Mandy Jo Bennett Duck and James Russell Crossley stipulated under oath for purposes of sentencing that they were responsible for conspiring to distribute approximately 60.2 grams of cocaine powder and approximately 18 grams of crack cocaine. (U)
III. Discussion.
  As a threshold matter we address Morgret's motion to apply the "beyond a reasonable doubt" standard to his objections to the pre-sentence report. The motion is based exclusively on Morgret's interpretation of the initial majority opinion issued in the case of United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), written by Justice Stevens.

  As noted by the government at the conclusion of Morgret's pre-sentence hearing, in presenting this motion Morgret requests us to revisit ground that we have already covered in this case. In ruling on Morgret's motion to apply the "beyond a reasonable doubt standard, we incorporate and rely upon the reasoning and conclusions set forth in our order of June 24, 2004, in which we denied his motion to impanel a jury for Morgret's pre-sentence hearing.

  In both that prior motion and his pending motion concerning the burden of proof, the flaw in Morgret's position is that it takes into account only one of the two majority opinions issued by the United States Supreme Court in Booker. Morgret does not consider the ...


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