by James Higdon
Then the case became a federal matter, and Smith and Molloy prepared to travel to Minneapolis on Thursday, November 5, and arrived there on Sunday, rented a car and drove thirty miles to the Stillwater prison. There they talked with Johnny Boone for three hours. As they drove back to Minneapolis in a snowstorm in the dark, Molloy failed to notice that traffic had stopped. He rear-ended the car in front of him, totaling their rental car.
The next morning, Monday, Jack Smith did something he had never done in his twenty-three years of practicing law: represent ten clients at once. Before the bail hearing started, he joked about it with the prosecutor. It wasn't a common scenario. At 10:00 a.m., the magistrate called the hearing to order.
"I would like the record to reflect that the ten defendants ... are all present in court this morning," the magistrate said. "And I would like Mr. Smith or Mr. Molloy to tell me what the intent is with respect to the individual representation of these ten defendants."
"Your Honor, I'm Mr. Smith, for the record. We were contacted on last Monday by the family of one of the defendants.... For purpose of this hearing ... we would be willing to represent everybody.... I cannot remember in my experience, either as a prosecutor or as a defense attorney, where I had ten clients; and I understand the problems that are inherent in that situation."
"Well, I'm not sure what to do," the magistrate said. "Each of you has a right to be separately represented by your own lawyer. I see as far as I can tell right now that perhaps five of you are represented, and I have no clue about the rest of you. And I can ask you if you want to go forward today with this hearing or whether you want to have lawyers present, but we cannot go forward today ... without this whole thing being clarified."
One by one, the magistrate read the names of the ten Kentuckians present, and each in turn said that he or she wanted Jack Smith as his or her lawyer, saying: "I thought Jack Smith was going to be my lawyer," "I want Mr. Smith to be my lawyer," "Jack Smith," "Jack Smith," "Jack Smith, Your Honor."
The magistrate took some time to explain to them "the problems about joint representation," telling them that joint defendants usually have "some conflicting interests. One defendant may want to say it wasn't me, it was him."This sort of problem, perhaps common to common criminals, was irrelevant to Johnny Boone and his crew: None was going to point the finger at others and claim his own innocence.
"Do all of you understand that there may be other conflicts that exist among yourselves on legal issues and fact issues?" the magistrate asked. "Everybody understand that? I see that everybody says they do understand."
Jack Smith had never before had ten clients at once, and by the end of the day, he would have seventeen when the Wisconsin Seven (all residents of Loretto) came before the magistrate for a similar hearing.
After the hearing, in the Minnesota holding cell, Smith Fogle finally had time to think, and he didn't like what he was thinking about. It wasn't just Minnesota that concerned him. Fogle was already out on bond for another pot-growing incident just the year before back home, where the Kentucky State Police caught Fogle growing a half-acre of marijuana (about five thousand plants) between the cornfield and wood line on a Hardin County farm.
At trial, the commonwealth's attorney presented a compelling case based on circumstantial evidence. The state police hadn't caught Fogle in his patch, so there was no smoking gun that connected him to the crime, but there was a path that led from the back door of the house, through the cornfield, and right to his secret garden. Fogle's lawyer, Elmer George, thought this was a tough piece of evidence to get around, but he advised Smith to hire an investigator, who took aerial photos of the farm. It turned out that cow paths criss-crossed every part of the farm and that it was impossible to say whether the path that led to Fogle's alleged marijuana patch was made by Smith Fogle or a herd of cattle.
So, with the positive turn in the case, George had managed to settle Fogle's case, getting him released on bond. The whole thing was behind him, Fogle thought, until it hit him like a brick in the nine-by-six-foot cell in the Sauk County jail. When the Wisconsin seven were eventually reunited with the Minnesota ten, Johnny Boone saw Smith Fogle's face and knew just what he was thinking.
"Don't worry," Boone told him. "Everything's going to be all right."
But it wouldn't be.
Before the magistrate ruled on bail, Johnny Boone's wife and mother wrote letters to the magistrate, asking for him to allow Boone to return home before his trial:
To whom it may concern,
I have been married to John Boone for 26 years.... We have four children and have always been a very close family. John's mother is not in very good health. It would be a human kindness ifyou would grant him bond so that he could see his family again.
Thank you for considering my request.
Sincerely, Marilyn Boone
November 16, 1987
To whom it may concern,
My son, John, has always felt that keeping his word is very important. He can be depended on to be available if he is released on bond. He has never tried to evade an obligation such as this.
lam a sixty-seven-year-old widow and not in good health. I hope that my remaining son can be released on bond.
Thank you, Jean W. Boone
The magistrate granted bail to everyone except Johnny Boone, who waited in the Stillwater prison until the trial, set for the end of April. In the meantime, Smith and Molloy began working on the case, having numerous phone conversations with the federal prosecutor in St. Paul and filing discovery motions. Smith traveled again to St. Paul to examine evidence gathered at the Boone farm, which filled an entire room of the Federal Building-books, pictures, firearms and about two hundred pieces of camouflage clothing.
On November 1, 1987, President Reagan's pet project, the 1984 anticrime law, finally took effect, imposing tight restrictions on the 550 federal district judges' discretion when sentencing the defendants before them, removing all human judgment from the determination of sentencing. A commission formed in response to the legislation created a complex chart with forty-three levels of offenses and seven levels of offenders. The commission then ordered judges to use the chart, like a slide rule, to determine a guilty party's sentence without any consideration for any cause for deviation. In addition, November 1 was the last day anyone convicted in federal court could be eligible for parole. The Federal Parole Board took no new cases; in five years, it would be totally dissolved.
As Johnny Boone sat in his cell in Stillwater, Minnesota, he had only a vague idea of the seismic shifts in federal criminal law happening beneath his feet. Given his experience in federal court before, and having a seasoned federal prosecutor like Jack Smith as his attorney, Boone felt reasonably confident that even if he couldn't beat the charges he faced, he would be back home in less than five years. Prison wasn't something that scared Boone; it was an accepted risk of doing business, but he had no idea what he was about to face.
The US attorney in St. Paul had targeted Boone as a "class I cannabis cultivator" with a prior record, which meant that under the second and third counts in the indictment Boone would be exposed to a potential life sentence if convicted at trial.
Even though Boone had been arrested on October 23, one full week before the tough anticrime measures took effect, the mood of the Justice Department had grown tough on enforcement. The St. Paul office of the US attorney worked to pin as many years on Boone as possible.
Boone's only saving grace was that because of his pre-November arrest, his sentence, no matter how long, would be served under the "old law," in prison lingo, not the "new law" that took effect November 1. Consequently, Boone would serve 66 percent of his allotted sentence; had he been busted eight days later, he would have been forced to serve more than 85 percent of his time.
Even before Johnny Boone and his crew saw the Minnesota magistrate to set their bail, agents from the DEA and FBI started working to understand how Johnny Boone's operation fit into what the Justice Departme
nt already knew about the Marion County marijuana "cartel," according to internal documents released through the Freedom of Information Act.
The first government files pertaining to Marion County men engaged in the marijuana business date back to 1975. By 1985, federal agencies knew of Marion County connections to multiton shipments of Colombian marijuana, linking Kentuckians to the coastal underworlds of Savannah, St. Augustine and Key West; they knew of Marion County links to the transport of kilos of cocaine aboard northbound Amtrak trains from Florida to Washington, D.C.; they knew that tough enforcement by the Kentucky State Police had forced "these career violators into expanded geographical areas" and a distribution network that stretched the entire length of the East Coast and included cities in the Midwest and as far away as Los Angeles. But they had no idea how big or complex the organization had grown by 1987, when Minnesota officials stumbled upon Johnny Boone's operation.
"Initially" the DEA thought this Kentucky pot syndicate "was one complex organization with one head." However, the man the government pegged as the godfather of Kentucky marijuana, Bobby Joe Shewmaker, had nothing to do with Johnny Boone's operation. After Boone's bust in Minnesota, "the priorities of the [DEA's] investigation shifted." Instead of a rigid, La Cosa Nostra-style pyramid structure with capos, lieutenants and soldiers organized by rank, the Marion County "cartel" was more organic, "a multi-faceted conspiracy ... with more than one head," like a "co-op or corporation." Far from being partners or co-conspirators, the government learned, Johnny Boone and Bobby Joe Shewmaker were "fiercely competitive" with each other and additional men operating on the "upper echelon" in the underground Kentucky marketplace.
In the wake of the spectacular harvest on Johnny Boone's Minnesota farm, the prosecution of what would become known as the Cornbread Mafia reached the highest levels of the DEA, which declared this case "a special events operation (SEO)" due to its significance as the "largest marijuana production case within the confines of the United States." In March 1988, bureaucrats from the DEA presented the Kentucky marijuana cases to a congressional committee, likely the House Appropriations Subcommittee on Justice, which met that month to determine the DEA's budget for the next year, "to illustrate the magnitude of the marijuana dilemma and the vast amounts of money generated by this cartel."
Long before Johnny Boone's bust in Minnesota, federal agents and Kentucky State Police had worked together in an Organized Crime Drug Enforcement Task Force, headquartered in Louisville, which followed the activities of Bobby Joe Shewmaker since 1984. But the task force had begun full force and full-time only in April 1987, employing agents from three federal agencies, the state police and a computer with two full-time analysts to keep track of the "complicated and massive nature" of Marion County's secret economy. In fact, the task force admitted candidly that "very little [was] presently known about" the Marion County outfit's "extremely high" level of wealth, other than "certain attorneys in Kentucky [were] assisting ... in laundering the assets."
Once Johnny Boone's operation was busted in late October 1987, members of the Kentucky-based task force scrambled to understand how Boone fit into what they already knew about Marion County. By December, the unit had shared "vast background data, intelligence information and organizational information" with the arresting agencies in seven states concerning the "heads of this domestic marijuana operation." However, during that same month, "the flow of information from the arresting agencies" coming into the task force's Louisville office suddenly "ceased."
A Kentucky State Police captain discovered the reason for the cessation of information flow: A supervisory agent from DEA headquarters in Washington, D.C., visited all the states where Kentuckians had been arrested: Wisconsin, Michigan, Minnesota, Indiana, Missouri, Kansas and Nebraska. After he visited each one, communication with the Louisville task force ended.
"Concerned," the task force called a meeting of its representatives from the DEA, FBI, IRS, US Attorney's Office and the Kentucky State Police. The DEA agent present "informed the task force" that the DEA headquarters-the top-level folks in D.C.-had adopted all the cases "to conduct a CCE [Continuous Criminal Enterprise] investigation," a statute designed to target drug kingpins with life sentences, into the Cornbread Mafia without the help or input from the Louisville-based task force, which had been working to put the Marion County marijuana operators out of business for years. Assistant US Attorney Cleve Gambill "expressed concern" that the investigation should be conducted by the locally knowledgeable and boots-on-the-ground task force in Louisville "and not by DEA headquarters."
On December 14, the FBI office in Louisville sent an airtel message to the FBI's new director, William Sessions, who had been sworn in only a month before, to inform the director's office of the ongoing investigation into the Marion County "cartel."The agent in charge of the Louisville office wanted the director's office to know that a supervisor from DEA headquarters in Washington, D.C., was interfering with the task force's investigation, "visiting all the states where the arrests have taken place. Since then the flow of information from the arresting agencies ... has ceased."
The next day an FBI supervisor spoke with a DEA supervisor in Washington, who "assured him that no CCE investigation would be conducted outside the present task force investigation."
A month later, on January 11, 1988, the Louisville-based task force met in Minneapolis with representatives from Indiana, Michigan, Minnesota, Missouri, Nebraska and Wisconsin-each of which had "ongoing investigations" related to "the cultivation, processing and distribution of marijuana by residents of Marion County, Ky."By then, thirty-two people had been arrested with eighty tons of marijuana valued at $144 million. Subsequent to that meeting, the US attorney for the Western District of Kentucky, Joseph Whittle, "confirmed that a CCE prosecution" would be "attempted in Louisville" and not from DEA headquarters.
However, the task force soon encountered the same roadblocks that other law enforcement agencies had discovered: the "politely uncooperative" nature of the Kentucky outlaws. "This is a very close-knit group," according to an FBI memo from September 1988, "and is virtually impossible to penetrate with conventional investigative techniques." Unlike the way the DEA could handle other drug hotspots in metropolitan areas, the DEA couldn't send an undercover agent or informant into Marion County because "all strangers are suspected to be policemen." Traditional stakeouts and other eyes-on surveillance were considered to be "fruitless due to the wariness of the subjects."
For two weeks in 1988, leading up to Johnny Boone's scheduled trial date, Jack Smith did nothing else but prepare for Boone's defense in St. Paul. He knew that two of the charges facing Johnny Boone carried life sentences. With the help of an associate, he prepared jury instructions and voir-dire questions and created folders for all the witnesses the government intended to call. Smith also called Boone's wife several times. The day before the trial was to start, Smith returned to the evidence room and reexamined some things after talking with Boone. Despite their hustle, the case never came before a jury.
Although Smith and Boone fully anticipated taking the case to trial, the government threw them a curveball when the assistant US attorney told them that the last three remaining defendants in the Minnesota case must collectively agree to a "package deal" plea bargain. If any of them decided to take their chances at trial, then they all would have to go. Each, therefore, was responsible for the fate of the others.
If Boone accepted the plea deal, he would be sentenced to twenty years. So, at the last moment the day before he was to go to trial, faced with carrying the fates of two others if he decided to fight and staring at the possibility of life in prison if he lost, Boone waived his constitutional right to trial by jury and accepted a twenty-year sentence-two consecutive tenyear terms. After his bust in the Belize deal, Boone had managed to get immunity for anything he may have done prior to that time, but when he tried to get a similar deal from the prosecutor in St. Paul, he had no luck.
The only saving gra
ce for Johnny Boone and his crew had been that his arrest had come in the last week of October, not the first week of November. Because he was busted before the November 1 start date for the 1984 anticrime law's mandatory sentencing guidelines, Johnny Boone would have to serve only 66.6 percent of his time.
"I'll be in until the year 2000," Boone thought. "But at least I won't be in until 2005 or for life. In 2000, I'll be fifty-seven years old." At the time, he was forty-four.
On April 29,1988, the last of Boone's Kentucky crew-the ones who hadn't already been sentenced to six months' jail time and three years' probation-met their sentencing fate, beginning at 10:30 a.m.
"Now, we'll turn to ... Mr. Berry?" the judge said, referring to Les Berry, the driver of the getaway car.
"Yes sir," replied Les Berry. "I'd just like to state that I fully regret my actions in this matter here."
"Earl?" the judge asked, referring to Earl Gray, Berry's attorney.
"Good morning, Your Honor . . . I'll be brief," Gray said. "But I would like to point out that Mr. Berry stands among the farmhands here who had been there for a week or so, yet he's thirty-six years old. In the thirty-six years that he has lived, this is the first time ever that he's even been arrested. He's a Marine, honorable discharge, and he spent six years in the Guards.
