USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-2391
UNITED STATES,
Appellee,
v.
JEFFREY M. GALLANT,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Torruella and Stahl, Circuit Judges,
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and Carter,* District Judge.
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Thomas J. Connolly for appellant.
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Michael M. DuBose, Assistant United States Attorney, with whom
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Jay P. McCloskey, United States Attorney, was on brief for appellee.
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June 1, 1994
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*Of the District of Maine, sitting by designation.
Per Curiam. In this appeal, defendant Jeffrey M.
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Gallant challenges, on three separate grounds, his sentence
for manufacturing and possession of marijuana. After
carefully considering defendant's arguments, we affirm.
I.
I.
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BACKGROUND
BACKGROUND
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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
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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
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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.
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DISCUSSION
DISCUSSION
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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
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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,
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488 U.S. 51, 55 (1988) (quoting United States v. Valenzuela-
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Bernal, 458 U.S. 858, 867 (1982)). The argument is that the
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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
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596, 601 (1st Cir. 1993) (quoting United States v. Edge, 989
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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,
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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
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States v. Barnett, 989 F.2d 546, 556 (1st Cir.), cert.
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denied, 114 S. Ct. 148 and 114 S. Ct. 149 (1993)), it is
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dispositive here.
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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
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law enforcement officials' testimony on these issues.
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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
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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
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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
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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,
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suggest that the act by which the potentially exculpatory
evidence is destroyed need be inadvertent. The Youngblood
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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
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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
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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
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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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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
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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
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specifically allege that fewer than 155 plants between one
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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
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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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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)
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and 841(b)(1)(B)(vii), which can be taken into account for
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sentencing purposes. See U.S.S.G. App. C, Amd't 484 (1993)
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("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
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21 U.S.C. 841(b)(1)(A)(vii) and 841(b)(1)(B)(vii). The
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statute does not use the term "mixture or substance" in
relation to marijuana plants. See id. Therefore, the
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amendment upon which defendant relies does not apply in the
context of marijuana plants.
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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.),
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cert. denied, 112 S. Ct. 272 (1991). The primary reason
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underlying our rejection of defendant's argument in McMahon
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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
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United States v. Fitol, 733 F. Supp. 1312, 1315 (D. Minn.
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1990)). Here, as in McMahon, Congress's intent must be given
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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.),
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cert. denied, 114 S. Ct. 80 (1993); United States v. Curtis,
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965 F.2d 610, 616 (8th Cir. 1992); United States v. Webb, 945
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F.2d 967, 968-69 (7th Cir. 1991), cert. denied, 112 S. Ct.
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1228 (1992). We find the reasoning of these cases persuasive
and applicable to the argument before us.
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Accordingly, we reject defendant's assertion that
the court erred in including the 155 smaller plants in its
drug quantity calculation.
III.
III.
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CONCLUSION
CONCLUSION
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Finding each of defendant's appellate arguments
unpersuasive, we affirm his sentence.4
Affirmed.
Affirmed.
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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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