By Van Smith
Published by City Paper, Mar. 26, 2014
When law enforcers first picked up Daniel Gerard McIntosh in 2011 on charges that he was involved in a massive cross-country, decade-long pot-trafficking and money-laundering conspiracy, he failed to recognize how much trouble he was facing, according to the lead prosecutor in the federal case against him and 15 others, Assistant U.S. Attorney Deborah Johnston. McIntosh, Johnston said in court on March 20, told his arresting officers: “Listen, I don’t believe for one minute my government’s going to sentence me to life in prison for selling marijuana.”
It turns out McIntosh, a co-owner of the now-defunct downtown Baltimore nightclubs Sonar and Talking Head, as well as McCabe’s in Hampden, was right.
At McIntosh’s sentencing hearing at the federal courthouse in Greenbelt, Md., U.S. District Judge Roger Titus ended up giving him the statutorily mandated 10-year minimum sentence, followed by eight years of supervised release. Prosecutors had sought 20 years – a term Titus called “way in excess” of what McIntosh’s conduct deserved.
But until Titus pronounced McIntosh’s sentence just after 2 p.m., after about four hours of proceedings, the threat of being in prison until his 70th birthday approached, or even dying there, theoretically hung over the 38-year-old’s head.
Under the federal sentencing guidelines, tabulated as a result of rulings Titus made during the hearing about McIntosh’s criminal history and the amounts of pot ascribed to him as part of the conspiracy, as well as his role in the enterprise, McIntosh should be getting 30 years to life in prison. As Titus remarked after he’d determined the categories into which McIntosh falls, the guidelines’ calculation “produces a big number,” whereupon McIntosh’s court-appointed attorney, Carmen Hernandez, exclaimed “Outrageous!”
In the end, though, Titus called the 30-to-life recommendation “greatly in excess” of what McIntosh deserved and indicated that even the mandatory 10-year sentence was too harsh, saying a “10-year sentence for what this man has been involved in is a very stiff sentence.”
While McIntosh was convicted of conspiring to traffic in 100 kilograms or more of marijuana, participating in a money-laundering conspiracy, and interstate travel in aid of the conspiracy, the jury at his six-week trial in the fall of 2012 acquitted him of participating at a higher, 1,000-kilogram-or-more level, laundering money through Sonar, and maintaining Sonar and a house in Medfield as drug-involved premises.
In an apparent attempt to take the edge off the sentence, Titus promised to make recommendations to the U.S. Bureau of Prisons that “could reduce time” for McIntosh, saying there is “something salvageable about this defendant” and that “I have hope for you,” predicting he could “emerge from this a better man. It’s up to you.”
McIntosh has been incarcerated since his conviction in late 2012, so his release date should come in 2022 – or earlier, should he qualify for the limited early-release options afforded by the federal prison system.
During the hearing, Hernandez made impassioned factual arguments gleaned from evidence in the case, determining that the amount of pot McIntosh actually had been responsible for was 136 to 318 kilograms rather than the 2,066 kilograms Johnston had estimated to the court. Hernandez also tried mightily to persuade Titus that several of McIntosh’s prior convictions should not be counted in calculating whether he should be dubbed a career criminal, triggering the 10-year mandatory minimum, and that McIntosh was a “worker” in the conspiracy, not a “manager or supervisor,” as Johnston asserted.
Ultimately, Titus held McIntosh responsible for 954 kilograms of weed-the amount he’d determined after a hearing last year that resulted in a $6.3 million preliminary forfeiture order against McIntosh, which became permanent with his sentencing. Titus also agreed with Johnston that McIntosh was a manager or supervisor and dubbed him a career offender.
While Titus did not include in his calculations McIntosh’s 2004 Baltimore County pot-related conviction, ruling it was part of the conspiracy charged in the current case, he counted four others: a 2004 Baltimore City valium-possession conviction and three pot-related convictions in York County, Pa., arising from conduct committed over a one-month period in 1998 that had resulted in a two-year prison sentence.
The top three members charged in the conspiracy have not yet appeared to face the charges. Matt Nicka and Gretchen Peterson were arrested last summer in Canada, and David D’Amico, according to a press release from the Maryland U.S. Attorney’s office, is awaiting extradition from Colombia. A fourth, Jeffrey Putney, presumably remains a fugitive. Johnston told Titus during McIntosh’s hearing that some of those still awaiting their fate in the case will appear before him “in the hopefully not too distant future.”
When McIntosh entered the courtroom at the beginning of the day’s proceedings, his most obvious health problem – degenerative arthritis – was manifest: He limped in, aided by a cane. He also suffers from Lyme disease, Hernandez said during the hearing. When McIntosh made his statement to Titus, given while seated rather than standing, as is customary, due to his infirmity, he opened with a reference to the loquaciousness which earned him the nickname “Talking Dan.”
“First of all,” said McIntosh, still bearing his trademark mustache and soul patch, “I’d like to apologize because it is going to be difficult for me to speak, which is new to me.” He proceeded to sketch out a difficult childhood when he “felt abandoned by my father,” which “made me callous and mean.” This upbringing prompted him to seek solace in intoxicants at an early age, starting with beer and cigarettes at 11 years old, progressing by the time he was 17 to “crack, heroin, everything,” he explained, since he found that, through drugs, “I could alter how bad I felt.” He had “no reason to trust anyone” and “wound up in jail,” an “absolute hell” that he “came out [of] knowing that I had to do something better.” Though “I knew that I couldn’t fix everything,” he “had to take steps,” and he now wishes “that I had made them faster.”
“I got off [hard] drugs but I was still miserable,” McIntosh continued. “Music literally saved my life,” he explained, crediting Bob Dylan and other titans of the modern music pantheon as “my teachers,” helping him to “figure out a new way of thinking” and to “find a way of not being so abrasive.” McIntosh “obviously still was involved in marijuana,” he explained, and those “were not good choices,” but at the time, he thought “I could not inflict pain on people” by being so involved-“I have a different view of it now,” he said.
Eventually, as the years passed, “music and art gave me a place to be helpful.” He found that “I could be somebody, for the first time in my life, that I could be proud of”-though “not without mistakes.” He learned that “my most important job was actually my children,” and “the fact that this is happening is almost unimaginable.”
He tearfully told Titus that “when you love your children as much as I love mine, sir, two days away from them . . . 10 years, 20 years . . . I don’t know how my mind can even comprehend that.” Confirming the words Johnston attributed to him when he was first arrested, McIntosh told Titus that “I had no sense that I would ever get into this kind of trouble” and that “I was so stupid for not understanding the possibility of 20, 30, life.”
McIntosh also broke down in tears as numerous people testified on his behalf, pleading for the judge’s mercy. The principal of the Medfield school attended by McIntosh’s children called him a “decent and generous man” as he described the toll McIntosh’s post-trial incarceration since late 2012 had taken on their school performance. A businessman who coordinates volunteers for local shelters, who spoke of McIntosh “perpetually volunteering,” called him “contrite” and “a good guy.”
Roman Kuebler, McIntosh’s former partner in Talking Head and the frontman of the Oranges Band, credited McIntosh for having “really validated all of the things I’ve been doing in my life with art and music.” McIntosh’s stepfather called him a “difficult teenager” who “turned himself around” to become “an excellent father.” His wife, Danielle McIntosh, implored for leniency, saying “I really need my partner back,” as “I don’t have any help” raising their children.
John Bourgeois, a prominent Baltimore criminal-defense attorney, spoke highly of McIntosh at the hearing, describing him to Titus as “forthright and candid”-and called the guideline sentence of 30 years to life “horrific, out of all proportion in a civilized society.”
The 10-year mandatory minimum, Bourgeois added, “is a massive sentence.”
In an email to City Paper after the hearing, Bourgeois opined that “the government took an especially harsh approach to Dan because he insisted upon standing on his Constitutional rights by putting the government to its proof” and that “the sentence vindicates Dan’s decision to go to trial” because “my understanding is that Judge Titus sentenced Dan to substantially less time than the government offered in plea negotiations.”
Titus explained that part of his job at sentencing is to “avoid disparities” in penalties given the various co-defendants in a case, while assuring that a message of deterrence is delivered-and Hernandez tried to assist by pointing out the fates of others caught up in the investigation that snared McIntosh. One in particular she singled out: Jacob Jeremiah Harryman, a real-estate developer who was one of the first people arrested among many, though he was not charged in the federal case.
Hernandez told the court that Harryman was videotaped by detectives saying he got “a million dollars a month” at the height of his pot-dealing, yet today he is “out on the street.” Harryman “was not a nice man,” Hernandez said, yet “he got to keep most of that money” and “was way over Mr. McIntosh in terms of profit and drug-dealing,” asking “is that the message” of deterrence that should be sent?
Harryman, reached by phone, said he had “no comment” about Hernandez’s characterizations. Court records show he currently has an electrical-contracting company that recently settled a lawsuit over unpaid wages to nine workers-though a tenth one continues to press the matter.
During the hearing, Titus went down the list of McIntosh’s co-defendants who have already been sentenced-all but one of whom accepted responsibility and pleaded guilty rather than go trial. Andrew Sharpeta, Titus said, got 63 months in prison after cooperating and testifying at trial. Sean Costello got 57 months, and Daniel Fountain got 96 months. Ian Travis Minshall, who got 48 months, was “comically stupid,” Titus said, for continuing his pot-dealing career after using it to pay his way through West Virginia University. Michael Phillips got 70 months, and Ryan Foreman got two years. Jeremiah “Jeremy” Landsman, a Baltimore developer who procured properties useful for the conspirators’ drug-dealing operations and helped launder money, got 57 months. Adam Constantinides cooperated and got 70 months. Joseph Spain, who had “very grave health problems,” Titus explained, got a one-day sentence, deemed already served. Titus called Keegan Leahy, who got 36 months after being convicted of some charges at trial with McIntosh, a “foolish man” who piloted airplanes in support of the conspiracy.
Of those convicted, Titus had the most damning words for Anthony Marcantoni, a previously convicted pot dealer who did five years in federal prison and came out to open Ground Control Academy martial-arts studio in Owings Mills-while also immediately resuming work as a pot dealer. Marcantoni “did not please me at all,” Titus said, calling him an “absolutely incorrigible person” who benefited from a “very generous plea agreement” obtained through “skilled negotiations,” resulting in “the highest sentence in this case so far,” 121 months-a month more than McIntosh.
Hernandez sought to minimize McIntosh’s role compared to these others, saying he did not, as others did, use fake identification; go on the lam; have attorneys’ fees paid by Nicka; or perjure himself to the grand jury investigating the matter, as did Landsman and Fountain (who also ran from the charges until being caught and brought back from California). Hernandez argued that “perjury before a grand jury is more damning to our system of justice than marijuana.”
McIntosh realized “so little enrichment” from his involvement in the conspiracy, Hernandez continued, that “it just boggles the mind that he is the person the government paints.” She added that Sharpeta, Minshall, and Landsman were “people who were integrally involved” and that “this conspiracy could not have run without them,” but McIntosh “had stopped” his involvement “more than two years” before the indictment came down in late 2010.
Johnston, though, while asserting “this is a sad day for all of us” and that she has “deep sympathy” for McIntosh’s wife and children, urged a long sentence for McIntosh. “He got a second chance” after his Pennsylvania convictions landed him in prison for two years, she said, but “he ignored that.” McIntosh’s crimes caused harm, Johnston said, because “we don’t know how many kids” ended up smoking the pot he dealt, causing them to miss school and waste opportunities for advancement, “so there is still an impact on the community.” And while the other conspirators “accepted responsibility,” McIntosh “has not done that,” which is “the first step” to rehabilitation. Given “the harm he has done” due to “his own selfish acts,” she urged a 20-year sentence, “well below the guideline range” of 30 years to life.
After the hearing, while chatting with well-wishers and McIntosh’s family and friends in the courthouse parking lot, Hernandez was almost embarrassed to be celebrating the outcome. “It’s a warped system,” she said, “that, for a non-violent marijuana offender, I’m celebrating that he got 10 years.”
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