In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3061

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES G. SWANSON,

Defendant-Appellant.



Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99-CR-25-S--John C. Shabaz, Chief Judge.


Argued February 24, 2000--Decided April 24, 2000




  Before POSNER, Chief Judge, and CUDAHY and EVANS,
Circuit Judges.

  EVANS, Circuit Judge. One issue on this appeal
presents an interesting question: Do "dead"
marijuana plants add up to trouble for a
defendant under the federal sentencing
guidelines?

  When officers from the Sauk County sheriff’s
department executed a search warrant at James
Swanson’s residence in Spring Green, Wisconsin,
they discovered an impressive marijuana-growing
operation. The evidence seized led to a federal
charge alleging possession with intent to
manufacture marijuana.

  Swanson tried, unsuccessfully, to suppress the
evidence obtained from the search. Afterwards, he
entered a conditional guilty plea to the charge
and was sentenced to a term of 42 months in
prison. He appeals, alleging that the police
intentionally or recklessly included false
information in the affidavit which led the state
judge to issue the search warrant. Failing that,
he claims that the search warrant was not
supported by probable cause. Finally, he tags on
an interesting sentencing issue, arguing that
remnants of marijuana plants--dead plants, he
says--found on his property should not have been
included in determining the size of his weed-
growing operation.

  The search warrant issues can be quickly
brushed aside. The search warrant was issued in
reliance on the detailed, four-page, single-
spaced affidavit of Detective Tom Meyer, a 15-
year law enforcement veteran with substantial
experience in investigating drug cases. Contrary
to Swanson’s alternative argument that the
affidavit contains no probable cause, we find,
despite some minor flaws, that it’s brimming with
it. So we move to the claim that material
misstatements intentionally or recklessly crept
into Meyer’s affidavit.

  Franks v. Delaware, 438 U.S. 154 (1978), sets
out the standards for challenging the validity of
search warrants obtained with the help of factual
misrepresentations, usually in affidavits but
sometimes in sworn testimony. To obtain a hearing
here, dubbed a Franks hearing after 1978, Swanson
had to establish by a "substantial preliminary
showing" that: (1) the affidavit contained a
false material statement; (2) the affiant made
the false statement intentionally, or with
reckless disregard to the truth; and (3) the
false statement is necessary to support the
finding of probable cause. 438 U.S. at 155-56;
United States v. Pritchard, 745 F.2d 1112 (7th
Cir. 1984). These elements are hard to prove, and
thus Franks hearings are rarely held.

  Swanson’s attacks here amount to little more
than throwing pebbles at a tank. He makes several
weak claims but we will mention only a few.
First, he says Meyer provided misleading
information because he failed to tell the issuing
judge that Swanson’s residence was bigger than a
neighbor’s residence used for purposes of
comparing electrical use. Second, he alleges
false and misleading statements about his tax
returns were included in the affidavit. Also, he
cites "misleading" statements about his real
estate--omitting the fact that his $609,917
property was encumbered by a $508,000 mortgage.

  A lot of heat, and thus electricity, is needed
to grow marijuana, and Detective Meyer reported
that he obtained energy usage records for
Swanson’s residence. Those records revealed that
Swanson’s average monthly use of electricity
increased every year from 1994 through 1998,
starting at 1,443 kilowatt hours per month,
progressing to 2,347 kwh/month, 5,057 kwh/month,
and 6,804 kwh/month. In 1998, Swanson averaged
9,615 kwh/month. Meyer contrasted this electrical
use with that of an unidentified neighbor of
Swanson’s who averaged only 1,408 kwh/month in
1997 and 1,424 kwh/month in 1998. This
information tended, if ever so slightly, to show
that something other than TV dinners were cooking
at Swanson’s.

  In another part of his affidavit, Detective
Meyer reported that a different state agent
reviewed Swanson’s tax returns for 1995-1997. In
those returns, Swanson identified himself as an
"operative builder." Swanson had no W-2’s. In
1995, while living at a different residence in
Spring Green, Swanson declared an adjusted gross
loss of $8,531, with inventory at $257,909. In
1996, Swanson declared an adjusted gross income
of $3,586, with an ending inventory of $229,429.
In 1997, Swanson reported an adjusted gross
income of $46,197, with a year-end inventory of
$239,681. Swanson’s return for 1997 also revealed
mutual fund investments generating $1,989 in
income.

  Detective Meyer reported that he had reviewed
records of the Sauk County register of deeds
which disclosed that Swanson’s property had a
fair market value of $607,917 in 1998. (Detective
Meyer also reviewed Wisconsin DOT records which
indicated that Swanson owned a 1954 Dodge truck,
1965 Porsche, 1967 Land Rover, 1989 Ford truck,
and a 1998 Audi station wagon.) No mortgage on
the real property was reported.

  As to the abnormally high electricity used on
the Swanson property, he has a point, although it
is a minor one at best. Swanson’s property was
bigger than his neighbor’s. But the lack of a
comparison only lessens the weight of the
allegations. If Meyer had intentionally said the
properties were the same exact size, when they
really were materially different, we would have
something closer to a Franks violation. Because
no comparison is explicitly stated, the
allegation ceases to be particularly useful in
establishing probable cause. And an unimportant
allegation, even if viewed as intentionally
misleading, does not trigger the need for a
Franks hearing.

  As for the tax records, Swanson argues that
Meyer misled the issuing judge because he failed
to include all of the information from the tax
returns. But there is no evidence to suggest that
Meyer intentionally withheld additional
information to trick the judge. The failure to
include more information, which would have given
a more complete picture of Swanson’s "business"
and thus shed more light on whether or not it was
a "front" for an illegal operation, is little
more than negligence. And negligence is no basis
for convening a Franks hearing.

  Finally, nothing in Swanson’s offer of proof
shows that Detective Meyer knew about the
mortgage on the property and disregarded or hid
it from the issuing judge. In essence, then,
Swanson is saying that the investigators should
have done more work. This, however, is not the
high standard required for convening a Franks
hearing. Swanson simply fails to explain why the
district court’s finding on this issue that
"there is no evidence that the police learned
this information and then failed to include it in
the affidavit; any failure to actually verify
this point is at most negligence" is clearly
erroneous. Finally, Detective Meyer accurately
reported to the issuing judge the "fair market
value" of the property owned by Swanson. He did
not characterize this figure as a "net equity
position."

  We could go on and on, but what’s the point?
Nothing here suggests that a Franks hearing was
required: At the very most, a little negligence
was at work. But a little negligence--actually
even a lot of negligence--does not the need for
a Franks hearing make.

  This brings us to the sentencing issue. The
district court found that the search uncovered
408 "live" marijuana plants and 1,142 discarded,
or "dead," plants. The judge added the two and
applied the 1 plant equals 100 grams equivalency
ratio under sec. 2D1.1(c) of the guidelines.

  Swanson argues that the district court erred in
two related ways. First, he asserts that it was
error to find that the 1,142 dead plants were
"marijuana plants." Because the 1,142 were merely
"stalks," the argument goes, they are
specifically excluded from the statutory
definition of marijuana under 21 U.S.C. sec.
802(16). Second, Swanson asserts that it was
error to include the 1,142 in the drug
equivalency ratio because they were "dead"
plants.

  Marijuana is defined as "all parts of the plant
Cannabis sativa L., whether growing or not; the
seeds thereof; the resin extracted from any part
of such plant; and every compound, manufacture,
salt, derivative, mixture, or preparation of such
plant, its seeds or resin," but "the mature
stalks of such plants" are excluded from the
definition. 21 U.S.C. sec. 802(16). For
sentencing purposes, however, the guidelines take
into account the total weight of marijuana,
including the stalks. Section 2D1.1 provides that
the weight of a controlled substance is
determined by "the entire weight of any mixture
or substance containing a detectable amount of
the controlled substance." U.S.S.G. sec.
2D1.1(c), *Note (A).
  The argument that the "stalks" should not be
counted is doomed by United States v. Garcia, 925
F.2d 170 (7th Cir. 1991). There, we held that
"stalks of the marijuana plant, although excluded
from the guideline definition of marijuana, can
still constitute part of a ’mixture or substance’
containing a detectable amount of marijuana for
the calculation of weight of the controlled
substance seized." Id. at 173. See also United
States v. Moreno, 94 F.3d 1453, 1456 (10th Cir.
1996) (marijuana stalks properly included in drug
weight calculation); United States v. Vasquez,
951 F.2d 636, 637 (5th Cir. 1992) (same).

  Alternatively, Swanson argues that only "live"
plants can be used when applying the drug
equivalency guideline, sec. 2D1.1(c). Although
two circuits lend support to that position--
United States v. Stevens, 25 F.3d 318 (6th Cir.
1994), and United States v. Blume, 967 F.2d 45
(2d Cir. 1992)--the majority of the circuits
which have addressed the point do not. They hold
that the equivalency ratio of sec. 2D1.1(c)
applies to all offenses involving the growing of
marijuana, regardless of whether the plants are
alive or dead. See United States v. Fitch, 137
F.3d 277, 281-82 (5th Cir. 1998); United States
v. Layman, 116 F.3d 105, 109 (4th Cir. 1997);
United States v. Shields, 87 F.3d 1194, 1197
(11th Cir. 1996); United States v. Silvers, 84
F.3d 1317, 1325-27 (10th Cir. 1996); United
States v. Wilson, 49 F.3d 406, 410 (8th Cir.
1995); United States v. Wegner, 46 F.3d 924, 927-
28 (9th Cir. 1995).

  We have not directly ruled on the issue of
whether the equivalency ratio applies to both
live and dead plants seized at a marijuana
grower’s operation. However, in United States v.
Haynes, 969 F.2d 569 (1992), we considered the
closely related issue of whether the equivalency
ratio should apply in a historical conspiracy
where the government offered evidence of both the
actual number of marijuana plants harvested in
the past and the actual weight of the marijuana
produced. Id. at 571.

  In Haynes, the defendant was charged with
conspiracy to manufacture and distribute over
1,000 marijuana plants. The number of harvested
plants (which no longer existed) was 12,500. The
amount of actual processed marijuana (which also
no longer existed) was 400 kilograms. The
defendant argued that he should be sentenced
based only on the harvested marijuana amount of
400 kilograms,/1 rather than the 12,500 plant
figure which, after application of the drug
equivalency ratio, resulted in a drug weight of
12,500 kilograms and thus a higher sentencing
range.
  We held the defendant’s sentence was properly
pegged to the 12,500 kilogram amount based on the
plain language of the equivalency provision in
the guidelines. We observed that the guidelines
clearly dictate that the actual weight figure,
not the 100 grams to 1 plant ratio, is used only
when the actual weight is higher. 969 F.2d 572.

  The defendant in Haynes also argued that the
district court could not use the 12,500 plant
count because they did not exist anymore, and had
in fact been converted into harvested marijuana.
Again we rejected this argument, finding the
plain language of the guidelines provision
"contemplates that individuals who succeed in
harvesting plants and processing marijuana
therefrom are still considered to have committed
offenses ’involving . . . marijuana plants.’" 969
F.2d 572.

  On the issue of seized live versus dead plants,
six other circuit courts of appeals have read
Haynes to mean that we believe seized dead plants
are counted for purposes of the 100 gram to 1
plant ratio set forth in U.S.S.G. sec. 2D1.1(c).
See Fitch, 137 F.3d at 281-82; Layman, 116 F.3d
at 109; Shields, 87 F.3d at 1196; Silvers, 84
F.3d at 1326; Wegner, 46 F.3d at 926; and
Stevens, 25 F.3d at 322. Those circuits have
correctly read our intentions. Today we
explicitly so hold: dead or alive, all "plants"
count.

  For all these reasons, the judgment of the
district court is AFFIRMED.



/1 In 1992, when Haynes was decided, the guidelines
called for a ratio of 1 plant = 1 kilogram. The
guidelines were changed to a ratio of 1 plant =
100 grams in 1995.
