
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                                         -2-                                          2            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                                               _____ ____                                         -3-                                          3            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                                         -4-                                          4            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                                         -5-                                          5            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.                                         -6-                                          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.                                         -7-                                          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.                                         -8-                                          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.                                         -9-                                          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.                                         -10-                                          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.                                         -11-                                          11
