                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                  January 10, 2008
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-3069
          v.                                              (D. Kansas)
 DANIEL MONTGOMERY,                             (D.C. No. 03-CR-20127-KHV)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant Daniel Montgomery was convicted following a

jury trial of one count of possession with intent to distribute 100 or more

marijuana plants, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C.


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
§ 2. He was sentenced to 120 months’ imprisonment. 1 On appeal, Montgomery

challenges his conviction, which we affirm.



                                 BACKGROUND

      Laren Culver rented space in his house at 1616 South 15th Street in Kansas

City, Kansas, to his friend, defendant Montgomery. With Culver’s knowledge

and permission, Montgomery grew marijuana plants in two back rooms of the

house. Culver testified that he, as well as other friends who came to visit

Montgomery, smoked marijuana provided to them by Montgomery.

      On April 22, 2003, Drug Enforcement Administration (“DEA”) special

agent Brent Coup observed Montgomery purchasing a large amount of

merchandise from a hydroponics store. When agent Coup performed a criminal

history check on Montgomery, he discovered that Montgomery had been charged

with a misdemeanor marijuana violation in 1999 and had been convicted in 1990

for trafficking 100 pounds of marijuana. Coup then obtained an administrative


      1
       This case has been before our court once before. Following the jury
finding of guilt, Montgomery filed a motion for acquittal. The district court
issued an order to show cause why the court should not grant a new trial or,
alternatively, enter a judgment of acquittal. The court subsequently granted
Montgomery’s motion for judgment of acquittal, vacating the jury’s guilty
verdict.
       On appeal, this court reversed the district court’s ruling and remanded for
sentencing. United States v. Montgomery, 468 F.3d 715 (10th Cir. 2006), cert.
denied, 127 S. Ct. 1389 (2007). On remand, Montgomery was sentenced to 120
months’ imprisonment.

                                        -2-
subpoena and learned that the house at 1616 South 15th Street used much more

electricity than comparable houses in the same neighborhood. Coup also

observed an unusual venting system and a temperature regulated attic fan at the

house, which he knew was commonly associated with indoor marijuana growing

operations. He also retrieved numerous marijuana stems and clippings from the

trash at 1616 South 15th Street. Coup then obtained a search warrant for the

house.

         When the DEA agents executed the warrant, they discovered a large

marijuana growing operation at the back of the house. Most of the marijuana

plants were in a large growing room, but a smaller room contained two “mother

plants” and “clones.” 2 The agents found “101 marijuana plants with fully

developed root systems, stems, and leaves.” Montgomery, 468 F.3d at 717. The

agents randomly sampled ten of the plants, which confirmed that they were, in

fact, marijuana.

         Montgomery was thereafter indicted on one count of possession with intent

to distribute 100 or more marijuana plants. At trial, the government called six

witnesses, whereas Montgomery called none. When Montgomery moved for a

directed verdict of acquittal on the ground that “there is no expert testimony in


         2
       As we explained in our prior Montgomery opinion, “[a] ‘mother plant’ is a
mature marijuana plant used to produce clippings that are put in a fertilized
solution in the hope that they will subsequently sprout roots and become new
marijuana plants.” Montgomery, 468 F.3d at 717.

                                         -3-
this case that the defendant possessed a hundred or more marijuana plants,” Tr. of

Mot. for Directed Verdict for Acquittal at 2, R. Vol. III, the district court denied

the motion, ruling that ample evidence established that the plants were marijuana.

      At the jury instruction conference, the parties and court agreed on the

language of Instruction 15, which stated, in pertinent part, as follows:

      In order to prove that defendant is guilty of the crime charged in the
      indictment, the government must prove beyond a reasonable doubt
      the following three essential elements:
      FIRST: On or about May 5, 2003, in the District of Kansas,
      defendant possessed 100 or more marijuana plants, a controlled
      substance;
      SECOND: Defendant knew that the substance was marijuana, a
      controlled substance; and
      THIRD: Defendant intended to distribute the controlled substance.

Instr. No. 15, R. Vol. I, tab 45. Instruction 16 then defined the term “to

distribute” as meaning “to deliver or to transfer possession or control of

something from one person to another.” Instr. No. 16, id. At the instruction

conference, the court proposed adding an additional sentence to Instruction 16:

“it does not include, however, distributing a small amount of marijuana for no

remuneration.” Tr. of Instr. Conference at 10, R. Vol. III. The government

countered by arguing that such an instruction was not applicable to a case in

which the defendant was charged, not with distribution, but with possession with

intent to distribute. Government counsel argued, “I don’t have to prove that he’s

distributed a whole bunch of marijuana, only that he’s possessed a hundred plants

of marijuana with the intent to distribute. I can show intent to distribute by one

                                          -4-
distribution.” Id. at 19. The court ultimately agreed with the government and

gave the original Instruction 16 defining the term “to distribute” without the

proposed additional sentence excluding from that term the distribution of a small

amount of marijuana for no remuneration. Neither the government nor

Montgomery objected to the proposed verdict form, which did not contain a

special verdict form allowing the jury to find that Montgomery distributed a small

amount of marijuana for remuneration.

      At closing argument, Montgomery’s counsel did not dispute that

“Montgomery grew marijuana. There is no question about that.” Tr. of Jury Trial

at 236, R. Vol. IV. Defense counsel then stated that, “The issues in this case are

two . . . : Did the government prove to you beyond a reasonable doubt that he did

so with an intent to distribute it? And secondly, did they prove to you beyond a

reasonable doubt that it was a hundred plants or more.” Id. He proceeded to

argue those two points, asserting that there was no evidence of any distribution in

this case, and there was insufficient proof that all the plants found at

Montgomery’s house were, in fact, marijuana. After receiving the case, the jury

returned a guilty verdict.

      Montgomery appeals his conviction, arguing: (1) the warrant and affidavit

in support of the warrant lacked probable cause to justify entry into

Montgomery’s house, in violation of the Fourth Amendment; (2) the district court

erred by failing to give the jury a special verdict form allowing it to find that

                                          -5-
Montgomery distributed a small amount of marijuana without remuneration; and

(3) the prosecutor undermined the fairness and integrity of the trial by denigrating

defense counsel during her examination of witnesses and closing argument.



                                   DISCUSSION

      I. Sufficiency of warrant and affidavit

      Montgomery filed a motion to suppress, arguing there was insufficient

probable cause to support the warrant. The district court denied the motion,

finding there was sufficient probable cause for the issuance of the warrant or, in

the alternative, the good faith exception to the exclusionary rule supported denial

of the motion to suppress.

      “When reviewing a district court’s denial of a motion to suppress, we

review the district court’s factual findings for clear error and consider the

evidence in the light most favorable to the Government.” United States v.

Zamudio-Carrillo, 499 F.3d 1206, 1209 (10th Cir. 2007). “Nevertheless, Fourth

Amendment reasonableness is a question of law, so we review de novo the district

court’s determination of . . . probable cause.” United States v. Traxler, 477 F.3d

1243, 1246 (10th Cir.), cert. denied, 128 S. Ct. 254 (2007). More specifically,

“[d]eterminations relating to the sufficiency of a search warrant and the

applicability of the good-faith exception are conclusions of law, . . . which this

court reviews de novo.” United States v. Danhauer, 229 F.3d 1002, 1005 (10th

                                         -6-
Cir. 2000). Finally, while we review the district court’s ruling on the sufficiency

of a search warrant de novo, we do not review de novo the determination of

probable cause by the issuing judge or magistrate. Rather, a state judge’s

“decision to issue a warrant is entitled to great deference,” and we “need only ask

whether, under the totality of the circumstances presented in the affidavit, the

[state] judge had a ‘substantial basis’ for determining that probable cause

existed.” United States v. Artez, 389 F.3d 1106, 1111 (10th Cir. 2004) (quoting

Illinois v. Gates, 462 U.S. 213, 238-39 (1983)).

      Under the Fourth Amendment, “no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly describing the place to

be searched, and the persons or things to be seized.” U.S. Const. amend. IV. “An

affidavit establishes probable cause for a search warrant if the totality of the

information it contains establishes the fair probability that contraband or evidence

of a crime will be found in a particular place.” United States v. Soderstrand, 412

F.3d 1146, 1152 (10th Cir. 2005) (further quotation omitted).

      In this case, the affidavit in support of the warrant recounted the DEA

agents’ observation of Montgomery purchasing hydroponics equipment from a

hydroponics store; agent Coup’s observation of two dryer vents and a temperature

regulated attic fan on the roof of Montgomery’s residence; Coup’s discovery of

Montgomery’s two prior marijuana events; his discovery that Montgomery’s

residence was using electricity at a “significantly higher” rate than the two

                                          -7-
comparable houses in the neighborhood; and his recovery of “green vegetation

stems and numerous green leafy clippings,” which tests proved were marijuana, in

the trash outside Montgomery’s house. Affidavit in Support of a Search Warrant

at 2, Gov. Ex. A, attached to tab 16, R. Vol. I. Montgomery argues the warrant

and affidavit in this case “present[] no probable cause relative to drug

trafficking,” Appellant’s Op. Br. at 16, and recite activities or circumstances

which are consistent with legal activities.

      Montgomery misses the point when he argues the affidavit and warrant

presented no evidence of drug trafficking. Given the charges against

Montgomery, the government only needed to prove possession of 100 or more

marijuana plants with intent to distribute. And while several of the activities or

circumstances stated in the affidavit and warrant might individually be consistent

with legal activity, taken together, the statements in the affidavit and warrant are

completely consistent with, and suggestive of, a hydroponic indoor marijuana

growing operation. Thus, the evidence provided a substantial basis for the state

judge’s finding of probable cause.

      Even were we to conclude that the affidavit and warrant did not provide

sufficient probable cause, we would nonetheless affirm the district court’s

conclusion that the good faith exception to the exclusionary rule applies. In

United States v. Leon, 468 U.S. 897 (1984), “the Supreme Court adopted a good-

faith exception to the application of the exclusionary rule and specifically applied

                                          -8-
that exception where ‘an officer acting with objective good faith has obtained a

search warrant from a judge or magistrate and acted within its scope,’ even

though the search warrant was later deemed to be invalid.” United States v.

Herrera, 444 F.3d 1238, 1249 (10th Cir. 2006) (quoting Leon, 468 U.S. at 920).

“In this circuit, we have concluded that ‘Leon’s good faith exception applies only

narrowly, and ordinarily only when an officer relies, in an objectively reasonable

manner, on a mistake made by someone other than the officer.’” United States v.

Cos, 498 F.3d 1115, 1132 (10th Cir. 2007) (quoting Herrera, 444 F.3d at 1249).

      In this case, the DEA agents searched Montgomery’s house in reliance on

the warrant issued by a state judge. “When reviewing the reasonableness of an

officer’s reliance upon a search warrant, this court must examine the underlying

documents to determine whether they are ‘devoid of factual support.’” Danhauer,

229 F.3d at 1006 (quoting United States v. McKneely, 6 F.3d 1447, 1454 (10th

Cir. 1993) (quotations and italics omitted)). The Leon Court recognized four

situations in which an officer would not have reasonable grounds for believing

that a search warrant had been properly issued. In any of those situations, the

good-faith exception to the exclusionary rule is inapplicable. Thus, when the

affidavit supporting the warrant is “so lacking in indicia of probable cause as to

render official belief in its existence entirely unreasonable,” Leon, 468 U.S. at

923 (further quotation omitted), the good-faith exception does not apply.

Additionally, the exception does not apply “when a warrant is so facially deficient

                                         -9-
that the executing officer could not reasonably believe it was valid.” Danhauer,

229 F.3d at 1007 (citing Leon, 468 U.S. at 923).

      Montgomery argues that “the insufficiency of the affidavit should have

been obvious to the experienced agent preparing the warrant and to the officers

executing the warrant.” Appellant’s Op. Br. at 19. We disagree. As the analysis

above demonstrates, the affidavit and warrant were hardly “facially deficient” or

“so lacking in indicia of probable cause as to render official belief in its existence

entirely unreasonable.”



      II. Failure to give special verdict form

      Montgomery argues the district court “erred in failing to give a special

verdict form allowing the jury to find that Mr. Montgomery possessed with the

intent to distribute a small amount of marijuana for no remuneration.”

Appellant’s Op. Br. at 20. As indicated, Montgomery was charged with

possession with intent to distribute 100 or more marijuana plants, in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii). Among the penalty provisions under

that section is § 841(b)(4), which provides that “any person who violates

subsection (a) of this section by distributing a small amount of marihuana for no

remuneration shall be treated as provided in [§ 844–i.e. subject to penalties for

simple possession].” 21 U.S.C. § 841(b)(4). As our factual recitation above

indicates, there was considerable discussion whether there should be an addition

                                          -10-
to the jury instructions reflecting this section, presumably to allow the jury to find

Montgomery guilty of distributing a small amount of marijuana for no

remuneration. Ultimately, all parties agreed to leave Instructions 15 and 16 as

written, with no addition to permit any distinction between “distribution” and

“distributing a small amount of marijuana for no remuneration.” Indeed, defense

counsel stated “I think it’s favorable to the defendant and I don’t object.” Tr. of

Instr. Conference at 9, R. Vol. III. As for the verdict form, defense counsel

specifically stated he had no objection to it. Id. at 28.

       In this situation, we agree with the government that Montgomery has

waived any objection to the verdict form. “‘Whereas forfeiture is the failure to

make the timely assertion of a right, waiver is the intentional relinquishment or

abandonment of a known right.’” United States v. Teague, 443 F.3d 1310, 1314

(10th Cir.), cert. denied, 127 S. Ct. 247 (2006) (quoting United States v. Olano,

507 U.S. 725, 733 (1993)). Here, defense counsel was very aware of this entire

issue. The court and both counsel engaged in considerable discussion and debate

about whether it was appropriate to allow the jury to give effect to the concept of

a small distribution for no remuneration. Ultimately, the court decided not to.

Under these circumstances, we conclude that Montgomery waived any argument

on this point. 3

       3
     In any event, as the government argued and points out on appeal,
Montgomery was not charged with distribution. He was charged with possession
                                                                 (continued...)

                                          -11-
      III. Prosecutorial misconduct

      Finally, Montgomery argues that the prosecutor undermined the fairness

and integrity of the trial by denigrating defense counsel during her examination of

witnesses and during closing argument. He concedes that he failed to object to

any of the prosecutor’s statements to which he now objects. We accordingly only

review those comments for plain error. United States v. Nichols, 21 F.3d 1016,

1019 (10th Cir. 1994). To satisfy the plain error standard, Montgomery must

prove that any error was plain and affected substantial rights. United States v.

Haney, 318 F.3d 1161, 1166 (10th Cir. 2003) (en banc). Even if these tests are

met, we may correct that error only if the error “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. at 1166-67 (quoting

Olano, 507 U.S. at 732).

      We have carefully reviewed all of the prosecutor’s statements or comments

Montgomery now challenges. Even if any of them were improper, we conclude

that Montgomery’s substantial rights were not violated. The evidence against

Montgomery was overwhelming, and it is highly unlikely that the few comments

by the prosecutor in any way influenced the jury.




      3
       (...continued)
with intent to distribute. “[A] jury may infer intent to distribute from the
possession of large quantities of drugs.” United States v. Pulido-Jacobo, 377 F.3d
                                  3
1124, 1131 (10th Cir. 2004).

                                        -12-
                        CONCLUSION

For the foregoing reasons, we AFFIRM Montgomery’s conviction.

                                     ENTERED FOR THE COURT


                                     Stephen H. Anderson
                                     Circuit Judge




                              -13-
