U.S. v. Ludwig

• Decision Date: 27 December 1974
• Docket Number: No. 74-1046,74-1046
• Citation: 508 F.2d 140
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl O. LUDWIG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 140

508 F.2d 140

UNITED STATES of America, Plaintiff-Appellee, v. Carl O. LUDWIG, Defendant-Appellant.

No. 74-1046.

United States Court of Appeals, Tenth Circuit.

Argued Sept. 9, 1974.

Decided Dec. 27, 1974.

William W. Deaton, Jr., Albuquerque, N.M. (Jack L. Love, Federal Public Defender, Albuquerque, N.M., on the brief), for defendant-appellant.

Mark C. Meiering, Asst. U.S. Atty., Albuquerque, N.M. (Victor R. Ortega, U.S. Atty., Albuquerque, N.M., on the brief), for plaintiff-appellee.

Before LEWIS, Chief Judge, and HOLLOWAY and DOYLE, Circuit Judges.

LEWIS, Chief Judge.

Defendant was convicted of a violation of 21 U.S.C. 841(a)(1), possession with intent to distribute marihuana, and was sentenced to three years' imprisonment and an additional parole term of two years. He contends that the judgment was prejudicially tainted by an illegal search, by a variance between the controlling statute and the proof as to the involved marihuana, by misconduct of the district attorney, and by an unlawful sentence.

Defendant was first arrested for a traffic violation near Santa Rosa, New Mexico. While reading the rear license plate of defendant's vehicle, the arresting officer noted the smell of marihuana, requested the defendant to open the car trunk but was told by defendant that he had no key. The officer directed defendant to follow him back to Santa Rosa. En route back to Santa Rosa defendant was seen searching in the back seat of the suspect car. The officer again stopped him and found a syringe and a cotton wad in the driver's seat. At Santa Rosa the officer presented, by affidavit an account of the stated occurrences to a proper magistrate, a search warrant issued, and the resultant search revealed 430 pounds of marihuana in the trunk of defendant's car.

The sufficiency of the officer's affidavit to premise the issuance of the warrant is attacked in two regards: (a) the failure of affiant to establish his ability to recognize the odor of marihuana; and (b) the conclusory statement that a syringe is the usual 'paraphernalia' to take heroin. This latter allegation in the affidavit is pure surplusage and inherent in the officer's statement that he smelled marihuana is the claim that he is familiar with that substance's odor. ¹ We conclude the search was lawful.

Defendant next contends that the government failed to show prima facie that the substance found in appellant's car was a 'controlled substance' proscribed by 21 U.S.C. 841(a)(1). There are, he asserts, three distinct species of marihuana. Although section 812(c), 21 U.S.C., includes 'marihuana' generally as a controlled substance, that term is then defined as 'all parts of the plant Cannabis sativa L., whether growing or not . . ..' 21 U.S.C. 802(15). By necessary implication, the defendant concludes, Cannabis indica and Cannabus ruderalis are excluded, and thus the testimony of the government's expert chemist, that his tests could not distinguish the three species, is fatal to the government's case. Again, we disagree.

The keystone of this argument is, of course, that there are three distinct species of plants known collectively as marihuana; that Congress intended to criminalize only one species of marihuana; and that a contrary interpretation of the pertinent sections would leave the average citizen without sufficient notice of the activity sought to be prohibited. This same argument has been made in numerous cases and has been uniformly rejected. Thus, in United States v. King, 10 Cir., 485 F.2d 353, we referred approvingly to United States v. Moore, 3 Cir., 446 F.2d 448, cert. denied 406 U.S. 909, 92 S.Ct. 1617, 31 L.Ed.2d 820, where it was noted that

marihuana, a term of Mexican origin, is the dried leaves and flowering tops of a plant species commonly known as hemp. Botanically, the hemp plant is called Cannabis sativa L. There is only one species of this plant. Leary v. United States, 395 U.S. 6, 50 (89 S.Ct. 1532, 23 L.Ed.2d 57). However, because of the difference in soil content and climatic conditions, the plant grown in various parts of the world is not physically the same . . .. Cannabis indica is the name goven to Cannabis sativa L. grown in India.

446 F.2d at 450. Accord, United States v. Gaines, 5 Cir., 489 F.2d 690; and United States v. Rothberg, 2 Cir., 480 F.2d 534, cert. denied 414 U.S. 856, 94 S.Ct. 159, 38 L.Ed.2d 106, wherein the court countenanced the possibility that Cannabis is botanically polytypal but rejected defendant's argument nonetheless. In the instant case, the government's expert chemist testified that the 'different types' of marihuana are the same, and the defendant's expert testified that the 'different types' of marihuana are distinct from each other. Having considered that testimony, the trial court instructed the jury that the statutory definition of marihuana included Cannabis indica as well as Cannabis sativa L. We perceive no reason for concluding as defendant would have us do, that the instruction erroneously stated the law, and we accordingly reject the defendant's argument that the government failed to show that the material found in defendant's automobile was...