826 F.2d 200 (2nd Cir. 1987), 793, United States v. Pforzheimer

Docket Nº:793, Docket 86-1282.
Citation:826 F.2d 200
Party Name:UNITED STATES of America, Appellee, v. John PFORZHEIMER, Defendant-Appellant.
Case Date:August 18, 1987
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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826 F.2d 200 (2nd Cir. 1987)

UNITED STATES of America, Appellee,


John PFORZHEIMER, Defendant-Appellant.

No. 793, Docket 86-1282.

United States Court of Appeals, Second Circuit

August 18, 1987

Argued Feb. 3, 1987.

Duncan Frey Kilmartin, Newport, Vt. (Rexford & Kilmartin, Newport, Vt., of counsel), for defendant-appellant.

Patti R. Page, Asst. U.S. Atty., Burlington, Vt. (George J. Terwilliger, III, U.S. Atty. for the D.Vt., Donald P. Moroz, Asst.

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U.S. Atty., Burlington, Vt., of counsel), for appellee.

Before LUMBARD, PIERCE, and ALTIMARI, Circuit Judges.

PIERCE, Circuit Judge:

This is an appeal from a judgment of conviction entered in the District of Vermont, Coffrin, Chief Judge, convicting appellant John Pforzheimer after a jury trial of violating 21 U.S.C. Sec. 841(a)(1), (b)(1) & (c) [sic], by manufacturing marijuana in an amount not exceeding 50 kilograms. On appeal, appellant contends, inter alia, that the district court erred in failing to apply state, or a combination of state and federal, constitutional law to the suppression issues in the case, and because the district court used interrogatories in connection with the jury's verdict which included a question stated in the disjunctive regarding whether appellant was guilty or not guilty. For the reasons stated below, we affirm.


The defendant, John Pforzheimer, and his twin brother, Robert Pforzheimer, were indicted by a federal grand jury in 1985 of narcotics offenses in violation of 21 U.S.C. Secs. 841 and 846: manufacturing in excess of 50 kilograms of marijuana, attempting to manufacture and possess with intent to distribute marijuana in excess of 50 kilograms, and conspiracy to manufacture marijuana in excess of 50 kilograms. The indictment arose out of a Vermont state police investigation of the cultivation of marijuana on property owned by the two Pforzheimers, which spans approximately one thousand acres of land in Newport Center, Vermont.

The Vermont authorities began their investigation of the Pforzheimers in 1982. At that time, John Pforzheimer was arrested on charges stemming from the manufacture of marijuana. The state trooper who made the arrest, one Roland Prairie, also became aware of a business known as the Stone Pfactory operated by the Pforzheimer brothers, in which they sold drug paraphernalia prior to the adoption of the anti-paraphernalia law in Vermont. All state charges were later dropped against John after the evidence seized as a result of the 1982 investigation was suppressed.

In investigating the instant case, Trooper Prairie, along with a state police officer and a state game warden, although they had no warrant, crept onto the southern portion of the property owned by the two brothers. While there, these state authorities observed 40-50 marijuana plants growing in the "open fields." The police officer and trooper also met with an informant who stated that the Pforzheimers had been growing marijuana on their property for years. Further, the trooper had flown over the Pforzheimer property and viewed large plots of dark green vegetation that did not appear to him to be normal.

Based on the search of the property and the informant's information, Trooper Prairie prepared the necessary papers for a search warrant for each of the Pforzheimers' residences. The warrant was issued by a Vermont state court. On July 24, 1985, state officers executed the warrant with respect to John Pforzheimer's residence and discovered approximately 4400 marijuana plants on the jointly-owned property. Upon learning that Robert Pforzheimer rented out his usual residence and resided elsewhere, the state officers sought and obtained a warrant to search the place where Robert Pforzheimer actually resided. State officers executed the second warrant on July 25, 1985, and uncovered marijuana, weapons, incriminating photographs and material used for drying marijuana.

John Pforzheimer was arrested on July 24, 1985, and Robert Pforzheimer, on July 25, 1985. Each was charged with two felony violations of Vermont's marijuana laws in the Vermont District Court. On August 2, 1985, federal complaints were issued against the two Pforzheimer brothers and on August 6, 1985, the state charges against John Pforzheimer were dropped because "federal charges are being brought against John Pforzheimer." Both brothers filed pretrial motions before Judge Coffrin, who denied all the motions. After a trial by jury, Robert Pforzheimer was acquitted

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of all charges; John Pforzheimer was convicted of knowingly and intentionally manufacturing some amount of marijuana in an amount less than 50 kilograms. John Pforzheimer was sentenced to four years in prison to be followed by a three year special parole term and a fine of $50 was assessed against him.

Appellant argues on appeal that evidence obtained as a result of the open fields search of the Pforzheimer property should have been suppressed. Appellant contends that the district court erroneously applied federal constitutional law at the suppression hearing, noting that the district court applied the open fields doctrine of Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), in admitting evidence obtained from the open fields search of the Pforzheimer property. If Vermont constitutional law had been applied, appellant contends, the evidence would have been suppressed. Appellant further argues that the district court erred by providing a verdict form with interrogatories to the jury. The government argues that the district court properly applied federal law at the suppression hearing and that the district court's use of the jury verdict form was not error. We consider each of these issues in turn.



We are presented here with the novel issue of whether the state or federal exclusionary rule should be applied in ruling on a motion to suppress evidence in a criminal trial in federal court when the evidence in question was solely the product of a...

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