18 F.3d 814 (9th Cir. 1994), 93-30130, United States v. Lennick

Docket Nº:93-30130.
Citation:18 F.3d 814
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gregory LENNICK, Defendant-Appellant.
Case Date:March 16, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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18 F.3d 814 (9th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Gregory LENNICK, Defendant-Appellant.

No. 93-30130.

United States Court of Appeals, Ninth Circuit

March 16, 1994

Argued and Submitted Feb. 1, 1994.

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Curtis L. Bevolden, Billings, MT, for defendant-appellant.

James E. Seykora, Asst. U.S. Atty., Billings, MT, George Darragh, Jr., Asst. U.S. Atty., Great Falls, MT, for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana.

Before: GOODWIN, SCHROEDER and NORRIS, Circuit Judges.

GOODWIN, Circuit Judge:

Gregory Lennick appeals his marijuana trafficking conviction following a jury trial. 21 U.S.C. Secs. 841(a)(1), 846, & 18 U.S.C. Sec. 2. He argues that the district court erred in denying his motion to dismiss his indictment; that the evidence was insufficient to support his conspiracy and manufacture convictions; that the district court erred in qualifying a police officer as an expert witness; and that the jury rendered an inconsistent verdict. We affirm in part and reverse in part.

I. FACTS

On November 12, 1992, police officers executed a search warrant and discovered marijuana growing in the crawl space underneath Lennick's house. Officers seized forty-six live and two dead marijuana plants, a notebook, a triple-beam scale, incriminating photographs, ninety-seven grams of harvested marijuana, grow lights, potting soil and various equipment used to grow and consume marijuana. A grand jury returned a three-count indictment charging Lennick with (I) conspiracy to manufacture, distribute or possess with intent to distribute; (II) manufacturing marijuana with intent to distribute in excess of fifty plants; and (III) possession of marijuana with intent to distribute. 21 U.S.C. Secs. 841(a)(1), 846 and 18 U.S.C. Sec. 2.

On the morning of trial, Lennick moved to quash the indictment because it had not been returned to a federal magistrate in open court as required by Fed.R.Crim.P. 6(f). The district court denied this motion. The government then presented testimony of various police officers and a forensic chemist who described the evidence found in Lennick's home; a utility company employee who indicated that Lennick's electric bill was higher than normal; and several of Lennick's acquaintances who stated that Lennick had sold or given them marijuana.

Lennick's defense was that he had grown the marijuana for his personal consumption, that no other individuals were involved in his marijuana cultivation, and that he had merely given marijuana to a few friends. He testified in his own defense, describing his heavy personal consumption and contending that he had never had more than fifty plants.

The jury convicted Lennick of counts I and II (conspiracy and manufacture) but acquitted him of count III (possession with intent

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to distribute). 1 In addition, the jury returned a special verdict, indicating that it found Lennick had manufactured or possessed more than fifty plants during the period charged in the indictment. The district court sentenced Lennick to eighty-seven months imprisonment followed by four years of supervised release. Lennick appealed.

II. FAILURE TO DISMISS THE GRAND JURY INDICTMENT

The government concedes that Lennick's indictment was not physically handed to a federal magistrate in open court and that the prosecuting attorney handed it to a court clerk when the court was not in session. However, the government argues that Fed.R.Crim.P. 6(f)'s requirement that an indictment "be returned in open court" was satisfied because these events were "the functional equivalent of returning in open court" and because Lennick was arraigned in open court five days later. Lennick insists that an indictment which is not physically returned in open court must be dismissed under "the leading case" of Renigar v. United States, 172 F. 646 (4th Cir.1909).

We agree that Fed.R.Crim.P. 6(f) requires indictments to be returned in open court, and that Montana's practice of handing indictments to the court clerk when court is not in session violates this rule. However, contrary to Lennick's arguments, 2 errors in the grand jury indictment procedure are subject to harmless error analysis unless "the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair." Bank of Nova Scotia v. United States, 487 U.S. 250, 254-57, 108 S.Ct. 2369, 2373-75, 101 L.Ed.2d 228 (1988) (citing cases where the grand jury selection process was discriminatory). "Dismissal of an indictment is considered a 'drastic step' and is generally disfavored as a remedy." People of Guam v. Muna, 999 F.2d 397, 399 (9th Cir.1993) (quoting United States v. Rogers, 751 F.2d 1074, 1076-77 (9th Cir.1985)). A defect in form which does not prejudice the defendant does not require dismissal. United States v. Mechanik, 475 U.S. 66, 71-72, 106 S.Ct. 938, 942, 89 L.Ed.2d 50 (1986) (dismissal not required where two witnesses appeared before the grand jury in violation of Rule 6(d)); Breese & Dickerson v. United States, 226 U.S. 1, 10-11, 33 S.Ct. 1, 2-3, 57 L.Ed. 97 (1912) (dismissal not required where only the grand jury foreman was present in open court).

While no recent case has addressed the situation of an indictment being handed to a court clerk rather than returned in open court, the procedure employed in the present case was not "fundamentally unfair." The record shows that both the grand jury foreman and the United States Attorney signed the indictment and that the court clerk filed it the day it was returned. Lennick was

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arraigned in open court five days later, and made no objection to the manner in which the indictment had been returned. The trial occurred within the timelines mandated by the Speedy Trial Act. Lennick has not shown that the grand jury was likely to treat any defendants unfairly or that they in fact treated him unfairly. The indictment adequately notified Lennick of the charges against him.

"[D]ismissal of the indictment is appropriate only 'if it is established that the violation substantially influenced the grand jury's decision to indict,' or if there is 'grave doubt' that the decision to indict was free from the substantial influence of such violations." Bank of Nova Scotia, 487 U.S. at 256, 108 S.Ct. at 2374 (quoting Mechanik, 475 U.S. at 78, 106 S.Ct. at 945); Muna, 999 F.2d at 399. Lennick has made no such showing. The evidence found during the warranted search showed overwhelmingly that Lennick was growing marijuana in his home. Nothing suggests that the grand jury would have failed to return the indictment had the magistrate asked the grand jury foreman to hand it to the clerk in open court. A petit jury later found Lennick guilty beyond a reasonable doubt.

While we do not condone the failure of a court and its staff to comply with a simple rule, in this case, the error was harmless. Muna, 999 F.2d at 399.

III. SUFFICIENCY OF THE EVIDENCE ON COUNT I (CONSPIRACY)

Lennick also argues that the government failed to prove he conspired to manufacture, distribute or possess with intent to distribute. In reviewing this claim, we must determine whether, viewing "the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Bishop, 959 F.2d 820, 829 (9th Cir.1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). Although a defendant claiming insufficient evidence faces a formidable burden, the government proved only that Lennick possessed marijuana which he gave and sometimes sold to his friends and acquaintances. It did not show that Lennick conspired with these individuals or with any other individuals to manufacture, distribute or possess with intent to distribute. Thus, we reverse Lennick's conspiracy conviction for insufficient evidence.

Conspiracy, by its nature, requires the government to prove that at least two persons had an agreement to commit the underlying offense. United States v. Hart, 963 F.2d 1278, 1283 (9th Cir.1992); United States v. Becker, 720 F.2d 1033, 1035 (9th Cir.1983). The government must show "(1) an agreement to accomplish an illegal objective; (2) the commission of an overt act in furtherance of the conspiracy; and (3) the requisite intent necessary to commit the underlying offense." United States v. Taren-Palma, 997 F.2d 525, 536 (9th Cir.1993). Although an agreement may be inferred from the defendant's acts or from other circumstantial evidence, id., "simple knowledge, approval of, or acquiescence in the object or purpose of a conspiracy, without an intention and agreement to accomplish a specific illegal objective, is not sufficient." United States v. Melchor-Lopez, 627 F.2d 886, 891 (9th Cir.1980).

The government did show that Lennick sold or gave marijuana to other individuals. Both Lennick's brother-in-law and his childhood friend testified that Lennick sold or gave them marijuana. In addition, a notebook found in Lennick's home and Lennick's own testimony established that Lennick had sold marijuana to several other individuals and had used marijuana to make car payments. 3

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However, this evidence proves distribution, not conspiracy. As most circuits have held, proof that a defendant sold drugs to other individuals does not prove the existence of a conspiracy. United States v. Lechuga, 994 F.2d 346, 347-50 (7th Cir.) (en banc), cert. denied, --- U.S. ----, 114 S.Ct. 482, 126 L.Ed.2d 433 (1993); United States v. Horn, 946 F.2d 738, 740-41 (10th Cir.1991). 4 Rather, conspiracy requires proof of "an agreement to commit a crime other than the crime that consists of the sale itself." Lechuga, 994 F.2d at 347. Were the rule otherwise, every narcotics sale would constitute a...

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