United States v. Burke ( 1993 )

  •                   UNITED STATES COURT OF APPEALS
                          FOR THE FIRST CIRCUIT
    No. 92-2057
                        UNITED STATES OF AMERICA,
                              JOHN E. BURKE,
                          Defendant, Appellant.
                        FOR THE DISTRICT OF MAINE
               [Hon. Morton A. Brody, U.S. District Judge]
                          Boudin, Circuit Judge,
                Coffin and Oakes*, Senior Circuit Judges.
      Mark  L. Randall  with  whom  Mary  A.  Davis  was  on  brief  for
      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
    *Of the Second Circuit, sitting by designation.
         COFFIN,  Senior Circuit  Judge.   After  the district  court
    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;
         (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
         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.   
         "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
    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
         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
         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.
    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.
         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
    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
    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.
    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.
         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
    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
    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:
         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.
    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
         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.
                                       Concurrence follows.
         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.
    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.