United States v. Jerome David Kahler, Also Known as Jerry Collar

996 F.2d 1222, 1993 U.S. App. LEXIS 22268, 1993 WL 241446

Opinion

996 F.2d 1222

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.
UNITED STATES of America, Appellee,
v.
Jerome David KAHLER, also known as Jerry Collar, Appellant.

No. 93-1482WA.

United States Court of Appeals,
Eighth Circuit.

Submitted: June 24, 1993.
Filed: July 6, 1993.

Before FAGG, BEAM, and HANSEN, Circuit Judges.

PER CURIAM.

Jerome David Kahler pleaded not guilty to a charge of knowingly manufacturing over 100 marijuana plants in violation of 21 U.S.C. § 841(a)(1). Over Kahler's objection, the district court instructed the jury that "the evidence need not establish that a specific amount or quantity of marijuana was manufactured, but only that a measurable amount of marijuana was in fact manufactured as charged in the indictment." The jury found Kahler guilty. On appeal, Kahler challenges the jury instruction contending it was misleading. We disagree. Although charged with manufacturing over 100 marijuana plants, the instruction properly clarified that the amount of marijuana manufactured was not an element of the offense. United States v. Johnson, 944 F.2d 396, 402 (8th Cir.), cert. denied, 112 S. Ct. 646 (1991), and cert. denied, 112 S. Ct. 983, and cert. denied, 112 S. Ct. 2951 (1992); see also United States v. Mastrandrea, 942 F.2d 1291, 1293 (8th Cir. 1991) (surplus indictment language may be disregarded), cert. denied, 112 S. Ct. 973 (1992). Accordingly, we affirm.