U.S. v. Miller, 88-5667

• Citation: 870 F.2d 1067
• Decision Date: 20 March 1989
• Docket Number: No. 88-5667,88-5667
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andy Kenneth MILLER, Jr., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1067

870 F.2d 1067

UNITED STATES of America, Plaintiff-Appellee, v. Andy Kenneth MILLER, Jr., Defendant-Appellant.

No. 88-5667.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 6, 1989.

Decided March 20, 1989.

John W. Gill, Jr., U.S. Atty., Chattanooga, Tenn., James R. Dedrick, Asst. U.S. Atty. (argued), Knoxville, Tenn., for the U.S.

Ralph E. Harwell, Knoxville, Tenn., for defendant-appellant.

Before MILBURN and BOGGS, Circuit Judges, and JOINER, Senior District Judge. ^*

MILBURN, Circuit Judge.

Defendant-appellant Andy Kenneth Miller, Jr., appeals his jury conviction on one count of unlawfully manufacturing 100 plants or more of marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(C), and 18 U.S.C. Sec. 2; and one count of unlawfully possessing with the intent to distribute 100 plants or more of marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(C), and 18 U.S.C. Sec. 2. For the reasons that follow, we affirm.

I.

A.

On September 29, 1987, defendant, along with a codefendant, was indicted in a two-count indictment. On March 29, 1988, jury trial commenced in the district court, and on March 31, 1988, the jury returned its verdict, finding defendant guilty on both counts.

Defendant was sentenced on May 25, 1988. The maximum sentence for each of the counts upon which he was convicted was a twenty-year term of imprisonment and a fine of up to one million dollars. 21 U.S.C. Sec. 841(b)(1)(C) (Supp.1988). As to Count One of the indictment, the district court sentenced defendant to an eight-year term of imprisonment and imposed a $50,000 fine. As to Count Two of the indictment, the court imposed an eight-year term of imprisonment and a $50,000 fine, with the term of imprisonment to run consecutively to the sentence imposed on Count One. This timely appeal followed.

B.

The facts underlying the present case are relatively straight-forward. Defendant, a dairy farmer in upper East Tennessee, approached a fellow dairy farmer, Henry Jones, sometime in early 1987 about growing marijuana on Jones' farm. Defendant told Jones that if he allowed defendant to grow marijuana on his farm, defendant would pay Jones $25,000.00 "up front" and $250,000.00 in profits. Jones told defendant he would consider it, and then went to the Drug Enforcement Administration ("DEA") with this information.

The DEA advised Jones that he should allow defendant to plant the marijuana. Defendant, along with his codefendant, subsequently planted marijuana in two different areas of Jones' farm and cared for the crop through the summer of 1987. However, unknown to them, they were monitored through the course of the summer by a surveillance camera hidden by the DEA in a tree on Jones' farm.

At one point during the summer, defendant confronted Jones with the fact that the tops of the buds of some of the marijuana plants had been cut. Jones testified:

Mr. Miller [i.e., defendant] and I went to the patch, looked at them. We looked at tire marks. There was a couple or three cigarette butts there. It was discussed who it was. Mr. Miller told me, he said, if we catch, whoever we catch, they'll be shot. They'll be run through the silage chopper and we'll disk them up in the ground.

J.A. at 74. Jones also observed an individual identified by defendant as "one of the buyers for the pot" on his farm that summer.

Defendant and his codefendant were arrested on September 16, 1987. They had brought in a bumper crop; it was stipulated that over 1,700 marijuana plants weighing around 5,600 pounds were obtained from the Jones farm. It was further stipulated that these plants constituted marijuana, a Schedule I controlled substance. See 21 U.S.C. Sec. 812.

On appeal defendant raises two issues: (1) whether Count One of the indictment charging the offense of manufacturing a controlled substance and Count Two charging the offense of possession of a controlled substance with the intent to distribute are separate and distinct offenses so as to permit the imposition of consecutive sentences; and (2) whether the district court abused its discretion in sentencing defendant to serve a sixteen-year term of imprisonment.

II.

A.

Defendant argues that the district court erred in imposing consecutive punishments for the same offense. He argues that manufacture of a controlled substance as charged in Count One and possession with intent to distribute as charged in Count Two constitute but one offense for which only a single penalty may be lawfully imposed. Defendant relies upon Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), wherein the Supreme Court held that "courts may not impose more than one punishment for the same offense...." Id. at 165, 97 S.Ct. at 2225. Defendant's argument is thus premised upon the double jeopardy clause which provides that no person "shall be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. Amend. V. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the Court made it clear that the double jeopardy clause "protects against multiple punishments for the same offense." Id. at 717, 89 S.Ct. at 2076 . (footnote omitted). See also Garrett v. United States, 471 U.S. 773, 777, 105 S.Ct. 2407, 2410-11, 85 L.Ed.2d 764 (1985) (the double jeopardy clause provides "protection against multiple punishment for [the same] conviction"); United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 114, 75 L.Ed. 354 (1931).

The question of whether two offenses are sufficiently separate and distinct so as to permit cumulative punishment was first addressed by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). There, the Court "established [the] test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment...." Brown, 432 U.S. at 166, 97 S.Ct. at 2226.

In Blockburger, the defendant was convicted of violating the provisions of the Harrison Narcotic Act by unlawfully selling specified drugs. The jury returned a verdict against the defendant on three counts of the indictment; the second, third, and fifth. The second count charged a sale on a specified day of ten grains of a drug not in the original stamped package. The third count charged a sale on the following day to the same individual of a drug not in the original stamped package. The fifth count charged the same offense as was involved in the third count but also as having been made "not in pursuance of a written order of the purchaser as required by the statute." Blockburger, 284 U.S. at 301, 52 S.Ct. at 181.

The defendant contended that the second and third counts, involving two different sales but to the same individual, could not be charged as separate offenses. He also argued that the sale charged in the third count and in the fifth count constituted but one offense. The Court rejected both contentions.

First, the Court noted that the sales charged in the second and third counts, although made to the same person, "were distinct and separate sales made at different times." Id. The Court found that each of several successive sales constituted a distinct offense under the Act, as the Act prohibited any sale and not merely the business of engaging in selling forbidden drugs. Id. at 302, 52 S.Ct. at 181.

The Court's treatment of whether the third and fifth counts charged separate offenses is especially instructive in the present case. The Court stated:

Section 1 of the Narcotic Act creates the offense of selling any of the forbidden drugs except in or from the original stamped package; and section 2 creates the offense of selling any of such drugs not in pursuance of a written order of the person to whom the drug is sold. Thus, upon the face of the statute, two distinct offenses are created.

Id. at 303-04, 52 S.Ct. at 181-82. The Court, however, did not stop with the above conclusion. The fact that two separate statutory provisions were involved was not determinative, as the Court viewed the issue. Instead, the Court turned to the question of whether, although separate statutes are involved, separate factual predicates must be established to prove each offense. The oft-stated test adopted in Blockburger is:

where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

Id. at 304, 52 S.Ct. at 182 (emphasis supplied).

The Court concluded that the proof related to the sale of a drug not in the original stamped package is separate and distinct from the proof necessary to show that the sale was made not in pursuance of a written order. Thus, "each statute requires proof of an additional fact which the other does not...." Id. (quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871)).

The Supreme Court, although urged to do so, see Albernaz v. United States, 450 U.S. 333, 338, 101 S.Ct. 1137, 1141-42, 67 L.Ed.2d 275 (1981), has not wavered from the Blockburger test. The test "emphasizes the elements of the two crimes." Brown, 432 U.S. at 166, 97 S.Ct. at 2226 (emphasis supplied). Thus, "[i]f each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes." Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975).

In Albernaz, 450 U.S. at 333, 101 S.Ct. at 1137, for example, defendants were charged with conspiracy to import marijuana in violation of 21 U.S.C. Sec. 963 and conspiracy to distribute marijuana in violation of 21 U.S.C. Sec. 846. After receiving consecutive sentences, they argued they were twice punished for a single offense; viz., a conspiracy...