No. 93-2391.United States Court of Appeals, First Circuit.Heard May 5, 1994.
Decided June 1, 1994.
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Thomas J. Connolly, Portland, ME, for appellant.
Michael M. DuBose, Asst. U.S. Atty., with whom Jay P. McCloskey, U.S. Atty., Portland, ME, was on brief, for appellee.
Appeal from the United States District Court for the District of Maine.
Before TORRUELLA and STAHL, Circuit Judges, and CARTER,[*]
District Judge.
PER CURIAM.
[1] In this appeal, defendant Jeffrey M. Gallant challenges, on three separate grounds, his sentence for manufacturing and possession of marijuana. After carefully considering defendant’s arguments, we affirm. I. [2] BACKGROUND
[3] On May 5, 1992, Captain Tim Bourassa of the Rumford, Maine, Police Department, along with other law enforcement officers, executed a state search warrant at defendant’s trailer. Pursuant to their search, the officers seized the following items: 33 marijuana plants between four and five feet in height and growing in pots; four harvested plants of the same size; 155 marijuana plants between one and three feet in height and growing in paper cups; a bag filled with dried marijuana leaves; two loaded rifles; and various other drug paraphernalia.
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was found guilty on the charge of manufacturing marijuana and the lesser included offense of possessing marijuana. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 844. However, he was acquitted of possessing the marijuana with intent to distribute. The jury also acquitted defendant of the firearms charges. Subsequent to trial and prior to sentencing, the marijuana leaves which had been stripped from the seized plants (and which had been introduced into evidence at trial) also were destroyed.
[6] A sentencing hearing originally was convened on July 28, 1993. During the course of that hearing, defendant raised several legal issues that, in the court’s estimation, required further briefing. Accordingly, the court recessed the hearing and continued the proceedings to a later date. On December 9, 1993, at the reconvened hearing, the court took testimony from Captain Bourassa and other law enforcement officials regarding, inter alia, the number of plants seized during the search of defendant’s trailer and whether those plants had developed root systems. The court also heard argument from defendant on the legal issues presented in this appeal. At the conclusion of the evidence and argument, the court rejected defendant’s legal arguments and determined that 188 marijuana plants were involved in this offense. Pursuant to the provisions of and commentary on U.S.S.G. § 2D1.1, this finding resulted in a base offense level of 26. After adding two levels for possession of a firearm, subtracting two levels for acceptance of responsibility, and ascertaining that defendant had a Criminal History Category of I, the court determined that the relevant guideline sentencing range was 63-78 months. It then sentenced him to 63 months in prison, to be followed by a four-year term of supervised release. This appeal followed. II. [7] DISCUSSION
[8] Defendant makes three arguments on appeal. First, he contends that the destruction of the plant roots and stems prior to trial constitutes a due process violation and entitles him to a recalculation of his sentence. Similarly, defendant asserts that the destruction of the marijuana evidence that was admitted at trial deprived him of a fair sentencing hearing. Finally, defendant argues that the district court committed legal error in determining the number of plants involved in the offense. We discuss each argument in turn.
[10] Defendant’s first argument implicates the law of “`what might loosely be called the area of constitutionally guaranteed access to evidence.'” See Arizona v. Youngblood, 488 U.S. 51, 55, 109 S.Ct. 333, 336, 102 L.Ed.2d 281 (1988) (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982)). The argument is that the State, by destroying the evidence upon which defendant’s sentence was premised, violated his due process rights. More specifically, defendant contends that the destruction of portions of the plants prior to trial precluded him from mounting an effective challenge to both the plant count and to Captain Bourassa’s testimony that each of the plants seized had developed root systems. And, since the law looks to the number of plants and to whether there is “`readily observable evidence of root formation'” in determining whether marijuana should be counted as a “plant” for sentencing purposes, see United States v. Burke, 999 F.2d 596, 601 (1st Cir. 1993) (quoting United States v. Edge, 989 F.2d 871, 879
(6th Cir. 1993)), defendant argues that this effective denial of potentially exculpatory[1] evidence prejudiced him at sentencing. [11] The problem with defendant’s argument is that the Supreme Court has clearly stated that a State’s failure to preserve potentially exculpatory evidence does not rise to the level of a due process violation unless “a criminal defendant can show bad faith on the
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part of the police.” Youngblood, 488 U.S. at 58, 109 S.Ct. at 337. Here, the district court, relying at least in part on the fact that this was only a state court matter (where the presence of root formation is irrelevant for sentencing purposes) when Captain Bourassa destroyed the plant portions, explicitly and supportably found that Captain Bourassa did not act in bad faith. And, because this finding was not clearly erroneous, cf. United States v. Barrett, 989 F.2d 546, 556 (1st Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 148, 126 L.Ed.2d 110 and
___ U.S. ___, 114 S.Ct. 149, 126 L.Ed.2d 110 (1993)), it is dispositive here.
[14] Defendant’s second argument, that he was denied a fair sentencing because the government destroyed the dried marijuana leaves that it had introduced into evidence at trial, requires little discussion. This evidence was in no way relevant to the district court’s sentencing calculation; it was the plant count, and not the weight of the dried leaves, that the district court took into account in determining defendant’s sentence. Thus, as the district pointed out at sentencing, there was “no prejudice from the fact that the marijuana introduced at trial . . . was not available at sentencing.”[3] [15] Accordingly, we reject defendant’s argument that the destruction of this evidence somehow compromised the justness of his sentencing. [16] C. Number of Plants Involved in the Offense
[17] Defendant’s third and final argument is that the district court erred in taking the 155 smaller plants into account in determining that 188 plants were involved in his crimes. As noted above, see supra note 1, defendant does not specifically allege that fewer than 155 plants between one and three feet in height were present in the trailer. Rather, he argues that the court applied an overly broad definition of the word “plant” in deciding that the 155 plants should be included in its drug quantity determination. Relying upon testimony that only female marijuana
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plants have commercial value and that male marijuana plants are eventually weeded out by marijuana distributors, and asserting that the 155 plants had not yet been sexually differentiated because of their growth stage, defendant contends that the 155 plants should be not considered a “mixture or substance,” see 21 U.S.C. §§ 841(b)(1)(A)(vii) and 841(b)(1)(B)(vii), which can be taken into account for sentencing purposes. See U.S.S.G.App. C, Amd’t 484 (1993) (“mixture or substance” for purposes of § 841 “does not include materials that must be separated from the controlled substance before the controlled substance can be used”).
[18] While ingenious, defendant’s argument fails for several reasons. First, 21 U.S.C. § 841 clearly distinguishes between “a mixture or substance containing a detectable amount of marihuana” and “marihuana plants.” See 21 U.S.C. §§ 841(b)(1)(A)(vii)and 841(b)(1)(B)(vii). The statute does not use the term “mixture or substance” in relation to marijuana plants. See id.Therefore, the amendment upon which defendant relies does not apply in the context of marijuana plants. [19] Moreover, although we have yet to address defendant’s specific gender-distinction argument, we have, in a very similar context, rejected an argument that plants which would be weeded out prior to distribution should not be included in the drug quantity determination at sentencing. See United States v. McMahon, 935 F.2d 397, 399 (1st Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 272, 116 L.Ed.2d 224 (1991). The primary reason underlying our rejection of defendant’s argument in McMahon applies to this case with equal force: “`Congress intended to punish growers of marihuana by the scale or potential of their operation and not just by the weight [or size] of the plants seized at a given moment.'” Id. at 401 (quoting United States v. Fitol, 733 F. Supp. 1312, 1315 (D.Minn. 1990)). Here, as in McMahon,
Congress’s intent must be given effect. [20] Finally, we note that three of our sister circuits have rejected nearly identical gender-distinction challenges. See United States v. Proyect, 989 F.2d 84, 86-88 (2nd Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 80, 126 L.Ed.2d 49 (1993) United States v. Curtis, 965 F.2d 610, 616 (8th Cir. 1992) United States v. Webb, 945 F.2d 967, 968-69 (7th Cir. 1991) cert. denied, ___ U.S. ___, 112 S.Ct. 1228, 117 L.Ed.2d 463
(1992). We find the reasoning of these cases persuasive and applicable to the argument before us. [21] Accordingly, we reject defendant’s assertion that the court erred in including the 155 smaller plants in its drug quantity calculation.
III. [22] CONCLUSION
[23] Finding each of defendant’s appellate arguments unpersuasive, we affirm his sentence.[4]
Defendant also seems to be arguing that the federal authorities’ decision to proceed against him subsequent to the destruction of the plants’ roots in and of itself gives rise to an inference of exploitation, constitutes bad faith, and should be considered a due process violation. To the extent that he is so arguing, the argument is specious. We simply are at a loss to see any merit in a rule whereby we would infer bad faith on the part of government prosecutors merely because they bring a prosecution after State authorities have destroyed some potentially relevant or exculpatory evidence. In this context at least, bad faith cannot be inferred; instead, we think it clear that a successful prosecutorial misconduct argument must be premised upon independent evidence that the prosecution was somehow improperly motivated. Here, there was no such evidence.