United States v. Gallant

• Court: Court of Appeals for the First Circuit
• Decided: June 1, 1994
• Docket: 93-2391
• Status: Published

Opinion

USCA1 Opinion

United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 93-2391

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                 JEFFREY M. GALLANT,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                         Torruella and Stahl, Circuit Judges,
                                              ______________
                             and Carter,* District Judge.
                                          ______________

                                 ____________________

            Thomas J. Connolly for appellant.
            __________________
            Michael M.  DuBose, Assistant  United States  Attorney, with  whom
            __________________
        Jay P. McCloskey, United States Attorney, was on brief for appellee.
        ________________

____________________
                                     June 1, 1994

                                 ____________________

_____________________
        *Of the District of Maine, sitting by designation.

Per Curiam.   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.
                                          I.
                                          __

                                      BACKGROUND
                                      BACKGROUND
                                      __________

                      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.

                      Subsequent to the search, Captain Bourassa stripped

            the seized  marijuana plants, preserving the  leaves and buds

            but  destroying the  stems and  roots.   At the  time Captain

            Bourassa destroyed  the stems  and roots, defendant  had only

            been charged with state drug  offenses.  Under relevant state

            law  (and  unlike  federal  law),  the  presence  vel  non of
                                                              ___  ___

            developed   root  systems  on   seized  marijuana  plants  is

            irrelevant  for  sentencing  purposes.   Apparently,  Captain

            Bourassa acted in accordance  with his customary practice for

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the  securing of  marijuana  evidence when  he destroyed  the

            plants' stems and roots.

                      Eventually, this  matter was referred  to a federal

            grand jury.  The grand jury returned a four-count  indictment

            charging defendant with  manufacturing marijuana,  possessing

            marijuana  with  intent  to   distribute,  and  carrying  two

            firearms in relation to  a drug trafficking crime.   The case

            was  tried to a jury and on  February 12, 1993, the defendant

            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.

                      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
                                               _____ ____

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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.
                                         II.
                                         ___

                                      DISCUSSION
                                      DISCUSSION
                                      __________

                      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

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district  court  committed  legal  error in  determining  the

            number  of plants involved in  the offense.   We discuss each

            argument in turn.

A.  Destruction of Plant Roots Prior to Trial
            A.  Destruction of Plant Roots Prior to Trial
            _____________________________________________

                      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 (1988) (quoting United States v. Valenzuela-
                                             _____________    ___________

            Bernal,  458 U.S. 858, 867 (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

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effective   denial   of  potentially   exculpatory1  evidence

            prejudiced him at sentencing.

                      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  part of  the police."

            Youngblood,  488  U.S.  at  58.   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.  Barnett,  989  F.2d  546, 556  (1st  Cir.),  cert.
            ______     _______                                      _____

            denied,  114 S.  Ct. 148 and  114 S.  Ct. 149  (1993)), it is
            ______                   ___

            dispositive here.

____________________

            1.  Defendant does not  specifically assert  that there  were
            fewer  than  188 plants  in the  trailer  or that  the plants
            seized  did  not have  observable  root  formation.   Rather,
            defendant argues that the destruction of the plants prevented
            him from  examining evidence  which might have  impeached the
                                                _____
            law enforcement officials' testimony on these issues.

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                                          6

Accordingly,  we  reject defendant's  argument that

            the  destruction  of  the  plant portions  violated  his  due

            process rights.2

            B.  Destruction of Evidence Admitted at Trial
            B.  Destruction of Evidence Admitted at Trial
            _____________________________________________

                      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

____________________

            2.  In his brief, defendant  makes two additional and related
            arguments.  First, defendant  perfunctorily asserts that  the
            Youngblood bad faith requirement  does not obtain where there
            __________
            has  been   a  deliberate  (as  opposed   to  an  accidental)
            destruction of evidence.   We see no merit in  this argument.
            Neither  Youngblood  itself,  nor  its  organizing principle,
                     __________
            suggest  that the  act by  which the  potentially exculpatory
            evidence is  destroyed need  be inadvertent.   The Youngblood
                                                               __________
            Court  was  concerned  with  "limit[ing] the  extent  of  the
            police's obligation to preserve evidence to reasonable bounds
            and confin[ing] it to that class of cases in which the police
            themselves  by their  conduct  indicate that  the [destroyed]
            evidence could  form a basis for  exonerating the defendant."
            Id. at 58.   Mere  intentionality in the  act of  destruction
            ___
            does not  indicate  a tendency  to  exonerate; after  all,  a
            police  officer can  intentionally  destroy  evidence  he/she
            truly  believes is  irrelevant.   Something  more is  clearly
            needed,  and the  Court  has determined  that that  something
            should be a demonstration of bad faith.   
                      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.

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                                          7

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

                      Accordingly,  we  reject defendant's  argument that

            the  destruction of  this  evidence somehow  compromised  the

            justness of his sentencing.

            C.  Number of Plants Involved in the Offense
            C.  Number of Plants Involved in the Offense
            ____________________________________________

                      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

____________________

            3.  Without   explanation,   defendant   asserts   that   the
            destruction  of  the   leaves  "hindered  [his]   ability  to
            challenge the plant count as to the 155 seedlings."  Although
            it is not entirely clear, it appears that the point defendant
            is driving at  is that the amount of leaves  may have somehow
                                                         ___ ____
            appeared inconsistent with a  finding that 155 plants between
            one and three  feet in  height were involved  in his  crimes.
            This  argument is not  persuasive.  First  of all, a  mass of
            removed  and  dried  leaves  is,  at  best,  only  marginally
            probative  on  the question  of how  many  plants it  took to
            generate  the  leaves.    And,  to  the  extent  that  it  is
            probative, the  sentencing judge,  who presided at  trial and
            viewed the leaves at  that time, had an ample  opportunity to
            take   it  into   account   in  making   his  drug   quantity
            determination.

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                                          8

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 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").

                      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.

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                                          9

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, 112  S. Ct.  272 (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.

                      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, 114 S. Ct. 80 (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,  112 S. Ct.
                                                _____ ______

            1228 (1992).  We find the reasoning of these cases persuasive

            and applicable to the argument before us.

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                                          10

Accordingly, we reject  defendant's assertion  that

            the  court erred in including  the 155 smaller  plants in its

            drug quantity calculation.

                                         III.
                                         III.
                                         ____

                                      CONCLUSION
                                      CONCLUSION
                                      __________

                      Finding  each  of  defendant's appellate  arguments

            unpersuasive, we affirm his sentence.4

                      Affirmed.
                      Affirmed.
                      _________

____________________

            4.  Our  opinion  should  not,  of course,  be  construed  as
            endorsing the  destruction of evidence that  took place here.
            We think  it obvious that law enforcement officials wade into
            dangerous waters when they  eliminate evidence which has even
            a remote potential for being relevant at trial or sentencing.
            This is especially true where, as here, inexpensive  means of
            memorializing the  nature of the  evidence (e.g., photographs
            or videotape) are widely available.

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