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I was pretty naive to have expected a final decision within an hour of starting the proceedings. Today's sentencing hearing spanned the entire morning and afternoon, only wrapping up at 5:40pm. Judge Hazel gave everyone a two-hour lunch break while he weighed the intricate arguments presented in the morning session, so the actual duration of the courtroom proceedings was more like four hours. In those four hours we heard a substantial amount of witness testimony and disputes over the text of the law.
The first part of the sentencing hearing brought back the three ATF special agents we heard from during trial. Chris Szokolczai, one of the executors of the search warrant, testified that the flashlight parts and cylindrical plugs in one of the photos could easily have been made into a silencer for one of the guns. He also walked us through the browser history on the Samsung tablet, which showed visits to online merchants selling silencer parts, and search queries on how to make a silencer, going back to April 2018. Szokalczai then walked us through the photos of drug manufacturing paraphernalia recovered during the search warrant, including Pyrex cookware with cocaine residue, vials full of PCP, a milk frother, and cutting agents typically mixed with these controlled substances. On cross-examination, Mr. Faison got Szokalczai to confirm that the smaller quantity of PCP found in Faison's bedroom was packaged similarly to the larger stash of PCP found in a garbage bag in Larry Newman, Jr.'s bedroom.
The next fact witness was special agent Matthew Leonard, who repeated his conclusions about the two firearms recovered from Mr. Faison's person. The AR-type pistol had no manufacturer markings, leading Leonard to conclude it was custom-assembled at someone's home. That much was not new to anyone who paid attention during trial. What intrigued me about Leonard's testimony was the new information on the Kimber pistol, which we thought was purchased by Larry Newman Jr. (or someone else without a felony conviction) on 2018-09-01 at Fred's Outdoor Sports, based on the photo of the receipt. Leonard reported having traced the Kimber pistol to a batch that got stolen during a 2008 heist in Virginia, so either the Fred's receipt was not for that weapon, or somehow the stolen Kimber gun made its way onto the shelves of Fred's store.
The third fact witness was special agent Jamie Rohsner, another executor of the search warrant on Mr. Faison's bedroom. Rohsner walked us through the chemical analyses performed by the PG County Forensics Lab, which positively identified the residue on the glass saucepan as cocaine, and the contents of the vials as PCP. On cross-examination, Mr. Faison got Rohsner to say she had no knowledge of any fingerprint analysis conducted on the Pyrex cookware or other drug manufacturing paraphernalia.
Then we heard Mr. Patel from the federal defender's office, whose testimony concerned the pre-sentencing report's recommendation that the offense level should be enhanced based on the connection of the firearm possession to possible violations of the controlled substances act (which violations were not part of the original indictment). Mr. Patel argued that the commentary attached to a prior 4th-circuit ruling should not be applied in this case, because it goes beyond a strict reading of the relevant statute in USC Section 21. Prosecutor Wright was allowed to present a short counterargument before the lunch break, and the debate continued after the court reconvened at 3:00pm. Judge Hazel used the lunch break to read through the prior court decisions and anticipate how the legal arguments would play out, so he had already made up his mind about which precedent to follow when interpreting the sentencing guidelines for Mr. Faison. Judge Hazel ended up siding with the federal defender's office; he ruled that the court precedent in Dozier [1] need not be followed in this case.
The next part of the hearing gave both sides a chance to make closing arguments. Prosecutor Wright went first, addressing a question posed by Judge Hazel and then summarizing the government's position that a ten-year sentence is appropriate. She cited four possible grounds for enhancement of the offense level, and received pushback from Judge Hazel on about two and a half of them.
1. The Kimber pistol turned out to be stolen. The government's position on "strict liability" puts the onus on the possessor to verify the origin of any firearm in possession, which would enhance the offense level by two points. Judge Hazel pushed back by saying that any previously convicted felon now charged with possession would obviously have obtained the firearm in the illegal market, so this provision of the law doubly punishes the repeat offender for the murky provenance of most weapons in that market. The purpose of enhancements, in Judge Hazel's view, is to distinguish between defendants charged with the same crime, ranking them according to how much of a danger they pose to society. The provenance of the Kimber pistol does not help make these distinctions, so Judge Hazel applied a downward variance to this enhancement.
2. The possession of the firearm was connected to another intended felony: either conspiracy to manufacture and distribute controlled substances (based on the newly presented evidence of cocaine and PCP in the basement bedrooms), or first-degree assault (based on the jail call where Mr. Faison said "I was gonna KILL HIM"). The prosecution wanted to apply a four-point enhancement to the offense level on these grounds. Judge Hazel remarked that the government had a stronger case for the connection to first-degree assault, but the evidence for a connection to drug distribution was pretty flimsy. Indeed, the weapons found on Mr. Faison's person were retrieved from the trailer parked outside, but the shotgun in the closet next to Larry Newman, Jr.'s bedroom would, on its own, provide enough protection for the garbage bag full of PCP vials.
3. The defendant perjured himself by fabricating a story on the witness stand and coercing his family members to corroborate his made-up story. For this "obstruction of justice", the prosecution sought a two-point enhancement of the offense level. Judge Hazel pushed back strongly on this point, saying that the nature of any trial is for two competing stories to be told around the same set of facts, and the choice of a defendant to serve as his own advocate in the courtroom should not lower the bar for an accusation of perjury.
4. Violating the terms and conditions of supervised release, by attempting to build firearms and silencers within a year of being released from prison, would merit another enhancement of the offense level, according to the government. This point was not seriously contested by Judge Hazel, but Mr. Faison objected that other people in the house had access to the Samsung tablet and to his bedroom, which leaves unproven his personal involvement in such activities (even at the lower standard "preponderance of evidence"). Prosecutor Wright responded by saying that Larry Newman, Jr. would not have left such incriminating supplies in plain view in Mr. Faison's bedroom, unless he regarded Mr. Faison as a willing accomplice to these activities.
In his closing argument, Mr. Faison repeated his claim that the government is good at mischaracterizing snippets of jail calls. He asked the court to consider the totality of the circumstances, and the character witnesses he would have called if their health permitted the stress of a courtroom cross-examination. He sought sympathy for his difficulty of transitioning back to life as a free man, after spending the majority of his 47 years of life in prison and learning maladaptive responses to perceived aggressions. He objected to being held responsible for the poor choices of his younger brother, a grown man in his own right who leads a life independently of Mr. Faison and can be expected to spill over some elements of that life into the adjoining bedroom (if Mr. Faison is frequently away from that house with the mother of Mr. Faison's new baby). Lastly, Mr. Faison asked the court to consider the victim's conduct (the pursuit through neighborhood roads by the driver of the burgundy vehicle), without which Mr. Faison would have continued his claimed 20-year abstention from handling firearms.
After taking into consideration all these adjustments to the offense level, rejecting some and allowing others to stand, Judge Hazel calculated the recommended range of prison time as anywhere from 77 to 83 months. Taking into account the violation of supervised release, the final sentence turned out to be 91 months, to be served in Fort Dix. A more complete explanation of Judge Hazel's reasoning will be entered into the court record shortly, along with the letter of support that the court received from one of us jurors on behalf of Mr. Faison, and the intricate untangling of prior court decisions filed by the federal defender's office.