United States v. Burke ( 1993 )


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  • USCA1 Opinion









    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT

    ____________________

    No. 92-2057

    UNITED STATES OF AMERICA,

    Appellee,

    v.

    JOHN E. BURKE,

    Defendant, Appellant.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MAINE

    [Hon. Morton A. Brody, U.S. District Judge]
    ___________________

    ____________________

    Before

    Boudin, Circuit Judge,
    _____________
    Coffin and Oakes*, Senior Circuit Judges.
    _____________________

    ____________________

    Mark L. Randall with whom Mary A. Davis was on brief for
    ________________ _______________
    appellant.
    Margaret D. McGaughey, Assistant United States Attorney, with
    ______________________
    whom Richard S. Cohen, United States Attorney, and Timothy D. Wing,
    ________________ _______________
    Assistant United States Attorney, were on brief for appellee.


    ____________________

    August 2, 1993
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    ____________________

    *Of the Second Circuit, sitting by designation.














    COFFIN, Senior Circuit Judge. After the district court
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    denied his suppression motion, appellant John Burke entered a

    conditional guilty plea to a charge that he knowingly

    manufactured marijuana in violation of 21 U.S.C. 841(a)(1) and

    18 U.S.C. 2. On appeal, he renews his claim that the search

    warrant affidavit failed to show probable cause and that,

    consequently, evidence seized from his home must be suppressed.

    He also claims that the district court erred in calculating his

    sentence based on 50 marijuana plants and an equivalency of one

    kilogram per plant. We affirm.

    I. Probable Cause
    ______________

    In July 1991, Bangor Police Officer Roy McKinney applied for

    a warrant to search the home occupied by appellant Burke and his

    wife Susan at 330 Fern Street in Bangor, Maine. The affidavit

    filed by McKinney in support of the warrant application described

    two conversations in which an unidentified individual had

    reported to a confidential informant about an indoor marijuana

    growing operation. The informant, who had proven reliable in the

    past, had passed on the information to a Detective Gastia, who

    then passed it on to McKinney.

    As reported in the affidavit, the unidentified person made

    the following assertions:

    (1) A person named "John" was growing 40 marijuana plants in
    his house;
    (2) The unidentified person had been to John's house, which
    was on Fern Street in Bangor, and it "reeked" of marijuana;
    (3) The house had a new addition;
    (4) A search warrant previously had been executed at John's
    house, resulting in the seizure of marijuana plants from an
    indoor growing operation;

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    (5) John had "beat the charge".
    The affidavit also contained the following additional

    information from McKinney:1

    (6) In 1989, McKinney had executed a warrant at the home of
    John Burke, at 330 Fern Street, and uncovered an elaborate indoor
    marijuana growing operation;
    (7) John Burke had not been prosecuted in connection with
    the 1989 seizure;
    (8) 330 Fern Street had a new addition;
    (9) Two cars parked at 330 Fern Street on June 19, 1991,
    were identified through Department of Motor Vehicle records as
    belonging to Susan and John Burke, of 330 Fern Street;
    (10) Power consumption records for 330 Fern Street revealed
    a pattern of usage consistent with indoor marijuana cultivation,
    with a dramatic drop in usage following the 1989 search and
    substantial increases beginning again in the fall of 1990.

    Burke contends that this affidavit was deficient and that

    the warrant therefore was invalid. His primary complaint is that

    the central information in the affidavit comes from an

    unidentified person whose reliability and credibility are

    untested and unknown. The issuing judge, he argues, had no basis

    upon which to credit this individual's assertions, which had

    passed through two other persons before reaching the affiant

    McKinney.

    Our limited role in evaluating a judge's decision to issue a

    search warrant is well established:

    We review the issuance of a search warrant with
    "great deference," United States v. Ciampa, 793 F.2d
    _____________ ______
    19, 22 (1st Cir. 1986), to verify that there existed a

    ____________________

    1 Defendant makes much of the fact that the affidavit reports the
    informant's conversations with Gastia "in substance" rather than
    verbatim. Unlike Burke, we do not believe that this phrase
    suggests that the information provided to the magistrate was
    unreliable. In our view, McKinney used the phrase to inform the
    magistrate fully that he was providing what he believed to be a
    substantively accurate, though not word-for-word, report of the
    conversations between Gastia and the informant.

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    "substantial basis" for the judicial officer's common-
    sense determination that, "given all the circumstances
    set forth in the affidavit . . . , including the
    `veracity' and `basis of knowledge' of persons
    supplying hearsay information, there [was] a fair
    probability that contraband or evidence of a crime
    [would] be found in a particular place."

    United States v. Scalia, No. 93-1018, slip op. at 4 (1st Cir. May
    _____________ ______

    21, 1993) (quoting United States v. Caggiano, 899 F.2d 99, 102
    _____________ ________

    (1st Cir. 1990) (quoting Illinois v. Gates, 462 U.S. 213, 238-39
    ________ _____

    (1983))). Having conducted such a "totality of the

    circumstances" scrutiny of the affidavit here, we are satisfied

    that the issuing judge had substantial support for his finding

    that "there existed a fair probability that marijuana and related

    paraphernalia would be found in appellant's residence," Scalia,
    ______

    slip op. at 8-9. Although the original source of the information

    leading to the search was anonymous, several factors vouched for

    the reliability of this person's assertions. Most significant

    was McKinney's experience and knowledge as a result of his

    involvement in the 1989 search of Burke's home. The source's

    information that an individual on Fern Street named John was

    growing marijuana dovetailed with McKinney's knowledge that

    marijuana plants had been seized two years earlier from the home

    of John Burke at 330 Fern Street. The source's further report

    that "John" had "beat the charge" coincided with McKinney's

    knowledge that Burke had not been prosecuted as a result of the

    1989 seizure. This coincidence of McKinney's knowledge with the

    source's information served to corroborate that information. See
    ___

    United States v. Taylor, 985 F.2d 3, 6 (1st Cir. 1993) ("An
    _____________ ______


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    affiant's knowledge of the target's prior criminal activity or

    record clearly is material to the probable cause determination.")

    It also is significant that the source's information was

    based on personal observation. See Scalia, slip op. at 7. This
    ___ ______

    individual had been to Burke's home and reported that it "reeked"

    of marijuana. But see United States v. DeLeon, 979 F.2d 761, 765
    ___ ___ _____________ ______

    (9th Cir. 1992) (warrant cannot be based on untrained or

    inexperienced person's claim to have smelled growing plants that

    have no commonly recognized odor). The source also noted that

    the house had a new addition, a fact corroborated by McKinney

    based on both his 1989 search and a drive-by after he received

    the 1991 tip.

    Some weight also attaches to the established record of the

    confidential informant, through whom the unidentified source

    communicated to the police officers. According to the affidavit,

    that informant ("CI#102") had provided information in the past

    that led to three felony drug arrests and the seizure of several

    pounds of marijuana. In addition, McKinney stated that the

    informant recently had provided information to him and Detective

    Gastia that was used to secure another search warrant that

    resulted indiscovery ofan indoor marijuanacultivating operation.2

    ____________________

    2 If we were to assign no weight to the reliability of the
    informant in this context, we would be in the peculiar position
    of inviting informants to be less forthcoming about their
    sources. For example, to avoid questions about the unidentified
    person, the informant could have relayed the information about
    the Fern Street marijuana operation as if it were the informant's
    direct knowledge. The issuing judge then would have considered
    only the informant's veracity and reliability in evaluating the
    warrant application. In any event, we think that the past

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    McKinney's own investigation further corroborated the

    likelihood that Burke once again was growing marijuana at 330

    Fern Street. The power source records he obtained showed that

    the residents of 330 Fern Street resumed an unusually high

    consumption of electricity after a lapse in time that coincided

    with the period immediately following the 1989 search and

    seizure, when Burke predictably would have been inclined to lie

    low. McKinney confirmed that the Burkes still lived at 330 Fern

    Street by checking motor vehicle records for the cars parked

    there.

    This confluence of factors was more than ample to establish

    probable cause. Although the multi-link chain of information

    began with an unidentified individual, the reliability of that

    information was reinforced by the proven history of the

    confidential informant, McKinney's personal knowledge, and the

    documentary evidence developed through investigation. The

    standard of probable cause requires a probability, not a prima

    facie showing, of criminal activity. See United States v.
    ___ ______________

    Ciampa, 793 F.2d 19, 22 (1st Cir. 1986). Unquestionably, the
    ______

    issuing judge here was given a sufficient basis for concluding

    that a new crop of marijuana probably was being cultivated at 330

    Fern Street.




    ____________________

    history of the informant is relevant and does strengthen the case
    for the warrant: it suggests not only that the information from
    the original source is being accurately reported but, as a matter
    of fact, that the informant has reliable sources.

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    We take a moment to discuss briefly Burke's allegation that

    the warrant was defective because of a material omission from the

    affidavit. He claims that McKinney was at least reckless in

    failing to notify the magistrate that the unidentified source had

    reported that "John" had "beat the [1989] charge due to search
    _____________

    and seizure problems." The affidavit did not give a reason for
    _____________________

    the lack of prosecution.

    The district court held an evidentiary hearing into Burke's

    claim that material information had been excluded from the

    affidavit, concluding that there was "no indication of any kind

    of deliberate falsehood or reckless disregard of the truth." See
    ___

    Tr. of July 16, 1992, at 28. We are satisfied that that court

    fully explored this issue, and that no basis for invalidating the

    warrant exists. Any discrepancy between the actual reason for

    the lack of prosecution in 1989 and the source's explanation is

    of marginal significance, if any, to the existence of probable

    cause. In our view, the crucial fact was the lack of

    prosecution, and on that point, the source and affiant were fully

    in accord.

    II. Number of Plants
    ________________

    Under the Sentencing Guidelines, when an offense involves

    fifty or more marijuana plants, the court is required to equate

    each plant with one kilogram of marijuana in determining the

    defendant's base offense level. See U.S.S.G. 2D1.1. When
    ___






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    fewer than fifty plants are at issue, the equivalency is 100

    grams for each plant.3

    The district court found that the offense here involved

    fifty plants, and Burke consequently was sentenced under the

    harsher one-kilogram-per-plant standard. The court's computation

    included 32 plants ranging in size from one- to three-and-one-

    half feet that were found in a large basement room in the new

    addition and two plants of similar size found in an adjoining

    smaller room. The court also included 16 one-to-three-inch

    cuttings, each growing in a separate pot, that were found in the

    small room.4

    Burke disputes the district court's calculation. He argues

    that at least some, and perhaps all, of the 16 small replanted

    cuttings lacked sufficient root development to be deemed plants.

    And he emphasizes that an error on just one plant would have a




    ____________________

    3 The relevant portion of the provision is as follows:

    In the case of an offense involving marihuana
    plants, if the offense involved (A) 50 or more
    marihuana plants, treat each plant as equivalent to 1
    KG of marihuana; (B) fewer than 50 marihuana plants,
    treat each plant as equivalent to 100 G of marihuana.
    Provided, however, that if the actual weight of the
    marihuana is greater, use the actual weight of the
    marihuana.

    4 A total of 36 one-to-three-inch cuttings was found in the small
    room. Although the court believed that all of these were likely
    to be plants within the meaning of the Guidelines, the experts
    who testified at the sentencing hearing had examined only 16 of
    them. The court therefore decided to give the defendant "the
    benefit of the doubt" and to exclude the other 20 from his
    calculation. See Tr. of Aug. 12, 1992, at 86.
    ___

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    dramatic impact on his sentence because of the 50-plant threshold

    for the one-kilogram equivalency.

    The district court's determination that the 16 cuttings

    should be classified as plants rests both on a legal

    determination -- what constitutes a "plant" under the guidelines?

    -- and a factual determination -- did the cuttings at issue

    fulfill those requirements? After a careful review of the record

    and caselaw, we find no reversible error in either respect.

    The court defined a plant for sentencing purposes as "a

    cutting with a root formation," Tr. of August 12, at 85. This is

    consistent with the definition previously accepted by this court,

    see United States v. McMahon, 935 F.2d 397, 401 (1st Cir. 1991)
    ___ _____________ _______

    (defining plants as "cuttings with roots"), as well as other

    courts, see, e.g., United States v. Edge, 989 F.2d 871, 879 (6th
    ___ ____ _____________ ____

    Cir. 1993) (a marijuana cutting is a "plant" for federal

    sentencing purposes "if there is readily observable evidence of

    root formation"); United States v. Bechtol, 939 F.2d 603, 604
    _____________ _______

    (8th Cir. 1991) (a cutting with "root hairs" -- "fine projections

    coming from the stem" -- is a plant); United States v. Eves, 932
    _____________ ____

    F.2d 856, 859 (10th Cir. 1991) (endorsing holding in United
    ______

    States v. Fitol, 733 F. Supp. 1312, 1315 (D. Minn. 1990), that
    ______ _____

    there must be evidence of "`individual growth after the

    severance, such as growing of roots'"); United States v. Speltz,
    ______________ ______

    733 F. Supp. 1311, 1312 (D. Minn. 1990) ("cuttings with roots"

    are marijuana plants). We see no reason to depart from this

    relatively straightforward, widely utilized standard.


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    Indeed, even Burke agrees that the presence of roots is a

    determinative factor in identifying a plant. He suggests,

    however, a more functional approach than is reflected by

    precedent. Based on the testimony presented by his expert at

    trial, Burke argues that new growth on a cutting may be termed

    roots -- and the cutting identified as a "plant" -- only when the

    growth "physiologically functions as a root." See Brief at 21.
    ___

    We decline to embrace this functional refinement to the

    "cuttings with roots" definition. If a cutting has growth

    extending from its base that is differentiated from its stem or

    stalk, a court must be permitted to use its eyesight and

    commonsense to conclude that it has before it a plant with roots.

    To require a court to determine whether the growth is performing

    all of the technical functions of roots is to complicate a matter

    that Congress intended to simplify:

    As Judge Devitt noted in [United States v.] Fitol, [733
    _____________ _____
    F. Supp. 1312 (D. Minn. 1990)], the legislative purpose
    was to remedy the problems associated with determining
    the weight of marijuana -- specifically, whether seeds
    and stems should be weighed in the mix -- and to
    supplant this test with a more simple method; a method
    providing that the number of "plants regardless of
    weight" would trigger the mandatory minimum sentence.
    733 F. Supp. at 1315. We perceive that the
    congressional intent was to simplify, not to
    complicate, the method of determining the high end or
    low end mandatory sentences. To accept the appellant's
    formulation would be to turn our face on the
    legislative purpose.

    Eves, 932 F.2d at 860 (quoted in Edge, 989 F.2d at 878). In our
    ____ ____

    view, plant status is sufficiently established when there is

    "some readily observable evidence of root formation," Edge, 989
    ____

    F.2d at 877. In other words, at the first sign of roots, a plant

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    exists for sentencing purposes. Cf. Bechtol, 939 F.2d at 605
    ___ _______

    (rejecting viability as the standard for whether a cutting is a

    plant); Eves, 932 F.2d at 857 (same).
    ____

    It is the government's burden to prove, by a preponderance

    of the evidence, that each of the 16 contested specimens was a

    plant. See United States v. Wright, 873 F.2d 437, 441-42 (1st
    ___ _____________ ______

    Cir. 1989) (preponderance of the evidence standard applies to

    sentencing issues). The district court's finding that each had

    sufficient root development to be classified as a plant may be

    reversed only for clear error. See Eves, 932 F.2d at 859; United
    ___ ____ ______

    States v. Carlisle, 907 F.2d 94, 96 (9th Cir. 1990) (per curiam).
    ______ ________

    We find no such error. The district court heard extensive

    testimony from two experts, viewed a videotape of the cuttings

    taken at the time of the seizure, and examined photographs taken

    by the defendant's expert after the cuttings had been pulled from

    their pots and dried. Both experts agreed that the cuttings as

    viewed in the videotape were healthy and thriving. Both agreed

    that at least some of the cuttings when examined displayed growth

    from the base, and that the videotape showed that all 36

    specimens in the small room (20 of which the court discounted,

    see supra at n.4) were of similar height and condition.
    ___ _____

    With this consensus as a foundation, the district court had

    ample support for finding that the cuttings all were sufficiently

    developed to be classified as plants. The government's expert,

    Dr. Lydon, explicitly testified that the growth on the six to ten

    cuttings that he personally examined was a form of roots, and he


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    found the remnants of roots in the growing medium from which the

    cuttings had been removed. He identified roots on 12 of the 16

    cuttings shown in the photographs. He further testified that the

    leaves on the cuttings in the videotape could be as large and

    healthy as they were only if there existed a root system to

    sustain them. This was particularly so, he said, because the

    cuttings were placed under intense light to spur their growth.

    Although the defense expert, Professor Colby, contradicted

    certain of Lydon's testimony, it was within the district court's

    province to evaluate what it heard and make judgments about the

    weight to attribute to each expert's views. Colby stated that he

    saw no plant matter in the rock wool that had contained the

    cuttings. The court, however, reasonably could credit Lydon's

    contrary testimony in light of its own ability to see roots on

    most of the 16 cuttings in Colby's photographs. Similarly, Colby

    testified that the growth at the base of the cuttings was not

    roots but simply "primordia," or the precursor of roots to come.

    In our view, the court properly could reject this

    characterization of the growth because Colby's testimony

    primarily focused on when plants have "functional root systems,"

    see Tr. of August 6, at 37, rather than on when the first stage
    ___

    of the system manifests.5

    ____________________

    5 Colby testified that the "newly emerging growth" at the base of
    some of the cuttings was not "roots" because it was not
    performing the function of roots. Tr. of August 6, at 38. He
    explained that one of the critical functions of roots --
    absorbing water -- requires root hairs. The root hairs develop
    on secondary roots, which in turn are formed off of primary
    roots. Id. He further testified:
    ___

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    Burke makes much of the fact that both Lydon and the

    district court acknowledged that several of the cuttings in the

    photographs showed no visible signs of roots. See Tr. of August
    ___

    12, at 47, 52, 67. The testimony, however, clearly permitted the

    district court to conclude that each of the similarly healthy

    plants in the videotape must have had the same level of root

    growth as the six to ten examined by Lydon, and that the

    inability to see them in the photographs was the result of

    fuzziness in the pictures or loss of the roots when the cuttings

    were pulled from the pots and dried.

    Two other points highlighted by Burke similarly fail to

    undermine the district court's finding. Detective McKinney

    testified that the cuttings continued to grow for several days

    following their seizure, and Burke suggests that it was only

    during this time -- if at all -- that the cuttings developed

    enough to be termed plants. The district court, however, was

    free to credit Lydon's contrary testimony that the root



    ____________________

    What we're looking for is a root system. And in order
    for a plant to be classified as a fully functional
    living organism . . . it's got to have functional root
    systems, leaf systems and stem systems." Id. at 38-39.
    ___

    In his testimony on the process by which cuttings develop
    roots, Lydon stated that callus tissue first develops in the spot
    where roots later will emerge. Tr. of August 12, at 34. In his
    view, when sufficient tissue develops at that location to be
    differentiated from the stem, the root system has begun and the
    specimen may be defined as a "cutting with roots." This
    description is consistent with the approach for recognizing roots
    adopted by the court in Edge (callus tissue is not a root, but
    ____
    small "hair-like projections" are the beginning of a root
    system). See 989 F.2d at 878-79 & nn.9, 10.
    ___

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    development he saw could not have been achieved in just several

    days. See Tr. of August 12, at 16.
    ___

    Burke also challenges Lydon's reliance on the size and

    health of the leaves to support his conclusion that the cuttings

    must have had roots. He notes that the government expert was

    unable to say unequivocally that Burke had removed all the

    previously grown large leaves from the cuttings before planting

    them -- the technique typically used by experienced growers.

    Burke's theory is that, if the leaves as viewed in the videotape

    were on the plants before the replanting, their size would not be

    evidence of functioning roots. But Lydon's testimony was not

    premised solely on the size of the leaves. He saw significant

    root formation, and primarily relied on the size of the leaves

    only for his conclusion that the plants he did not personally

    observe must have had the same root development.

    Finally, Burke contends that, at the least, the district

    court should have reduced the number of plants by 10 percent to

    reflect the typical failure rate of marijuana cuttings. This

    theory, adopted by the court in United States v. Angell, 794 F.
    _____________ ______

    Supp. 874, 876 (D. Minn. 1992), was never presented to the

    district court, and we decline to consider it for the first time

    on appeal. See McMahon, 935 F.2d at 399-400. Defendant had
    ___ _______

    ample opportunity to develop support for this theory through

    either of the two experts who testified. On this record, we have

    no basis for disturbing the district court's calculation.

    III. Due Process
    ___________


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    Burke argues that the equivalency of one plant to one

    kilogram of marijuana in the Sentencing Guidelines lacks a

    rational basis and therefore constitutes a violation of due

    process. This court recently rejected this argument, see Taylor,
    ___ ______

    985 F.2d at 9. Although Burke attempts to distinguish his case

    because it involves a different and allegedly less productive

    variety of the marijuana plant, the rationale of Taylor is fully
    ______

    applicable. See id. ("Congress reasonably may opt for a punitive
    ___ ___

    deterrent against large-scale marijuana manufacturing operations

    which pose a greater threat than small-scale operations, and

    warrant exponentially enhanced punishment.") This claim

    therefore also fails.

    Affirmed.
    ________

    Concurrence follows.


























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    OAKES, Senior Circuit Judge, concurring. While I concur in
    ____________________

    the majority's carefully reasoned opinion, I do so only because

    as a visiting judge in this circuit I consider myself bound by

    this court's prior decisions. These include United States v.
    _____________

    Taylor, 985 F.2d 3, 9 (1st Cir. 1993) (equation of young
    ______

    marijuana plants to kilograms of marijuana rational) and United
    ______

    States v. McMahon, 935 F.2d 397, 401 (1st Cir. 1991) (same).
    ______ _______

    Were I sitting where I would be free to consider the question

    solely on its merits, I would conclude that the equation for

    sentencing purposes of three-inch marijuana plants with at best

    marginal root structures to kilograms of marijuana is arbitrary,

    irrational and a violation of due process.






























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