
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                                 ____________________                                    ____________________        *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;                                         -2-               (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.                                            -3-               "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          _____________     ______                                         -4-          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                                         -5-               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.                                         -6-               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                                              ___                                         -7-          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.                        ___                                         -8-          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.                                         -9-               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                                         -10-          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                                         -11-          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:                  ___                                         -12-               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.                    ___                                         -13-          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                                        ___________                                         -14-               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.                                         -15-               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.                                         -16-
