U.S. v. Foree

Decision Date09 February 1995
Docket NumberNo. 91-5020,91-5020
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Francis Everett FOREE and Christina Draznin, Defendants-Appellants. Eleventh Circuit
CourtU.S. Court of Appeals — Eleventh Circuit

Sheryl J. Lowenthal, Coral Gables, FL, for Christina Draznin.

Thomas White, Brenda Bryn, Federal Public Defenders, Miami, FL, for Francis Foree.

Carol Herman, Linda Collins Hertz, Michael J. Dittoe, Asst. U.S. Attys., Miami, FL, for U.S.

Appeals from the United States District Court for the Southern District of Florida.

Before KRAVITCH and HATCHETT, Circuit Judges, and CLARK, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

The definition of "marihuana plant" under 21 U.S.C. Sec. 841(b) and U.S.S.G. Sec. 2D1.1(c) is the central issue in this case. We hold that, for sentencing purposes, cuttings and seedlings are not "marihuana plants" unless there is "some readily observable evidence of root formation."

Francis Foree was convicted by a jury of felony possession of marijuana plants with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (Count I), felony possession of an unregistered sawed-off shotgun in violation of 26 U.S.C. Sec. 5861(d) (Count IV), and misdemeanor conspiracy to possess marijuana plants in violation of 21 U.S.C. Secs. 844(a) and 846 (Count II); he was sentenced to concurrent terms of imprisonment of 97 months on Counts I and IV and 12 months on Count II. Christina Draznin, his codefendant, was convicted of misdemeanor possession of marijuana plants in violation of 21 U.S.C. Sec. 844(a) (Count I) and misdemeanor conspiracy to possess marijuana plants in violation of 21 U.S.C. Secs. 844(a) and 846 (Count II), and sentenced to concurrent prison terms of 12 months on each count. Both appeal their convictions and sentences. Although we AFFIRM the convictions, 1 we VACATE the sentences and REMAND for resentencing.

I.

The bulk of the evidence against the appellants was obtained during searches conducted on January 25, 1990, pursuant to a federal search warrant, at Foree's house, located at 3100 Virginia Street, Miami, and at a house rented to Draznin, located at 14850 Galloway Road, Miami. Execution of the warrants netted 24 mature marijuana plants, 56 cuttings, and 17 seedlings at the Virginia Street house, and 49 mature plants at the Galloway Street house. Furthermore, the searches revealed extensive indoor cultivation facilities at both locations, and a sawed-off shotgun and ammunition in a dresser drawer at Foree's house. It was also evident that no one was living permanently at the Galloway Street house.

Foree and Draznin initially challenge the district court's denial of their motion to suppress the fruits of these searches, arguing that no probable cause existed to support the issuance of the warrant. We disagree, and affirm the district court's ruling on this question. 2

The search warrant issued on the basis of an affidavit submitted by Special Agent Kenneth McCarron of the United States Drug Enforcement Agency ("DEA"). The affidavit averred that on January 24, 1990, a confidential informant ("CI") known to McCarron reported that she 3 had been to Foree's house on Virginia Street three weeks earlier and had observed an extensive indoor marijuana growing operation, and that Foree had wanted to show her a second growing location in the hope of recruiting her to tend those plants for him. Furthermore, according to the affidavit, on the afternoon of January 24, the CI, at McCarron's suggestion, went to visit Foree at his residence. After remaining inside for about five minutes, the CI exited and told McCarron that she saw about twenty small marijuana plants in separate containers under a large indoor growing light in one room of the house, and about fifty larger marijuana plants under a light in another room. A little later, the CI returned to Foree's house and, under constant police surveillance, was driven by Foree to the Galloway Road location. After a brief sojourn inside that house, the CI met with another DEA agent nearby, and told him that she observed three rooms inside the Galloway Street house that were being used to grow marijuana. The first room, according to the CI, had a big growing light and eight to ten large plants, the second had four to five lights and about thirty large plants, and the third room had three lights and also about thirty large plants. The CI also saw a number of screens in the refrigerator being used to dry the marijuana. McCarron's affidavit further noted that the CI had known Foree for five years, that the CI told McCarron that Foree was teaching her how to cultivate marijuana indoors and prepare it for distribution, and that DEA intelligence files indicated that Foree previously had been involved in unloading aircraft carrying marijuana at a clandestine airstrip in the Bahamas. Finally, McCarron averred that "[i]nformation previously provided by the CI has been corroborated by the affiant, and the CI has been found to be truthful and accurate in other narcotics trafficking intelligence provided to your affiant and other law enforcement officers. Further, the CI has not provided information found to be misleading or untruthful."

The task of the magistrate issuing a warrant is "simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there exists a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); see also United States v. Kirk, 781 F.2d 1498, 1505 (11th Cir.1986) (same).

Appellants launch a two-pronged attack on the probable cause finding in this case. First, they argue that the allegations in the affidavit concerning the CI's past veracity were bare and conclusory, and did not adequately inform the magistrate's judgment. Second, appellants contend that although the DEA surveillance may have corroborated the CI's access to the residences and her ability to see what she claimed to have seen, the officers' observations in no way confirmed the substance of those reports--i.e. the presence of any marijuana plants or indoor growing paraphernalia inside either location.

To a limited extent, we agree with the first argument. McCarron's affidavit did not disclose whether the information previously provided by Karen Cast related to the investigation of her own narcotics-related activities or those of other persons, whether that information was important or incidental to those investigations, or whether the information resulted in any search, arrest, or conviction. See United States v. Miller, 753 F.2d 1475, 1480 (9th Cir.1985). Although an averment that the CI has provided reliable information in the past is preferable to a bald assertion that she is a "reliable informant," it still "leaves the nature of that [past] performance undisclosed, so that the judicial officer making the probable cause determination has no basis for judging whether the [affiant's] characterization of [the CI's past] performance is justified"--the magistrate is still relegated, albeit in a more attenuated sense, to relying on the affiant's reliability judgment. 1 Wayne R. LaFave, Search and Seizure Sec. 3.3(b) at 636 (2nd ed. 1987). The allegation of reliability in McCarron's affidavit therefore should have been "entitled to only slight weight." Miller, 753 F.2d at 1480.

Discounting the affidavit's allegation of the CI's veracity, however, does not end the analysis, for, "even if we entertain some doubt as to the informant's motives, [her] explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles [her] tip to greater weight than might otherwise be the case." Gates, 462 U.S. at 234, 103 S.Ct. at 2330. Furthermore, under the totality-of-the-circumstances analysis announced in Gates, "veracity" and "basis of knowledge" are no longer viewed as independent prerequisites to a finding of probable cause: "a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability" such as corroborating evidence gathered by law enforcement. Id. at 233, 103 S.Ct. at 2329. It is undisputed that the CI's reports to McCarron were based on detailed, first-hand observation and demonstrate an adequate "basis of knowledge." The central question, then, is whether the DEA surveillance in this case constituted sufficient corroboration of the CI's veracity to support an overall finding of probable cause.

Appellants' second argument goes precisely to the issue of corroboration. But although their objection is not without appeal, it is ultimately not persuasive. It would certainly have been helpful to have corroborated the presence of an indoor cultivation facility more directly, and numerous courts have upheld the finding of probable cause when such averments were included in the affidavit. 4 Nevertheless, in our view, the averments in this affidavit constituted sufficient corroboration. There are different ways for police to corroborate the CI's "veracity." Independently confirming that what she said is true is one way; creating circumstances under which she is unlikely to lie is another. Here the CI made her observations in the context of a controlled surveillance operation and reported intermittently to supervising officers, who corroborated her access to the target of the investigation. As her report consisted of facts readily verifiable upon a subsequent search by the police (x number of plants growing in y room), the CI was unlikely to be untruthful, for, if the warrant issued, lies would likely be discovered in short order and favors falsely curried would dissipate rapidly. Accord 1 LaFave, supra, Sec. 3.3(f) at 686-87....

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