U.S. v. Smith, s. 91-5207

• Decision Date: 15 July 1992
• Docket Number: Nos. 91-5207,91-5343,s. 91-5207
• Citation: 966 F.2d 1045
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Charles L. SMITH, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1045

966 F.2d 1045

61 USLW 2004

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Charles L. SMITH, Defendant-Appellant, Cross-Appellee.

Nos. 91-5207, 91-5343.

United States Court of Appeals Sixth Circuit.

Argued March 20, 1992.

Decided June 5, 1992.

Rehearing Denied July 15, 1992.

Michael Winck (argued and briefed), Marilyn L. Hudson (briefed), Asst. U.S. Attys., Jerry G. Cunningham, U.S. Atty., Knoxville, Tenn., for U.S.

Gordon Ball (argued and briefed), Knoxville, Tenn., for Smith.

Before: GUY and NELSON, Circuit Judges, and REAVLEY, Senior Circuit Judge. ^*

REAVLEY, Senior Circuit Judge.

A jury found Charles Smith guilty of manufacturing marijuana on his thirty-five acre farm in White Pine, Tennessee. The district court sentenced Smith to thirty-six months in prison followed by three years of supervised release, and ordered criminal forfeiture of three of the four tracts that, together, constitute Smith's farm. Both Smith and the government appeal, contesting the prosecution of this case under federal law, the validity of the search of Smith's farm, and the propriety of the district court's sentencing and forfeiture order. We affirm Smith's conviction and the forfeiture order, but we vacate Smith's sentence and remand the case for re-sentencing.

I. BACKGROUND

On August 28, 1989, the Tennessee Bureau of Investigation (TBI) obtained and executed a state search warrant to search Smith's residence, which is located on his farm. Although the TBI agents found no drugs in Smith's residence, a Tennessee Highway Patrol helicopter pilot who was simultaneously surveying Smith's farm reported to the agents that he had located a marijuana patch in Smith's cornfield. The agents then searched the entire farm and discovered fifty-two marijuana plants in the cornfield and seven plants in a seed bed beside a barn. The government later destroyed these plants before Smith had the opportunity to inspect or count them.

After Smith's arrest, the state referred this case to the federal government for prosecution under federal law. A federal grand jury indicted Smith on one count of intentionally manufacturing marijuana in violation of 21 U.S.C. § 841. ¹ The indictment also called for the forfeiture of Smith's farm pursuant to 21 U.S.C. § 853. Prior to trial, Smith filed a motion to suppress the government's evidence, arguing that TBI's search of his farm exceeded the scope of the state search warrant and thus violated Tennessee search and seizure law. Smith also filed a motion to dismiss the forfeiture action, arguing that, because the farm consisted of four separate tracts, the government could not seek forfeiture of the entire farm as a single unit. Instead, Smith argued, the court must treat each tract separately, and order forfeiture only of those tracts that the government proves that Smith actually used or intended to use to facilitate the manufacture of marijuana. Smith also argued that forfeiture of the farm would constitute cruel and unusual punishment in violation of the Eighth Amendment.

The federal magistrate who heard Smith's motions recommended that both be denied, and Smith appealed. The district court adopted the magistrate's recommendation to deny Smith's motion to suppress, holding that the federal "open fields" doctrine validated the search of the cornfield and the area around the barn. But the court deferred its decision on the forfeiture issues to allow the jury to decide first whether Smith used the farm, as a whole, to manufacture marijuana.

The government's key witness at trial was Smith's former co-worker, Cleveland Gardner. TBI agents discovered forty-eight marijuana plants on Gardner's property on August 18, 1989, ten days prior to their search of Smith's farm. Gardner testified that Smith grew the forty-eight plants in the seed bed near his barn and gave them to Gardner, who transplanted them to his own property.

At the close of the evidence, the court provided the jury with a verdict form that contained two questions: (1) whether Smith is guilty of unlawfully manufacturing marijuana, and (2) whether Smith used or intended to use his farm to commit or facilitate the commission of that offense. The court instructed the jury that the government must prove Smith's guilt beyond a reasonable doubt, but it need only prove Smith's use of the farm to commit the offense by a preponderance of the evidence. The jury answered both questions affirmatively.

At the sentencing hearing, the district court determined that Smith had manufactured over 100 marijuana plants, including those found in the cornfield (52), beside the barn (7), and on Gardner's property (48). The court overruled Smith's objection to the court's inclusion of the plants found at Gardner's residence. The court agreed with Smith, however, that it must consider each of the farm's four tracts separately for forfeiture purposes. The court then excluded Tract 3, on which Smith's residence is located, from the forfeiture order. Finally, the court imposed a thirty-six month prison sentence, followed by three years of supervised release.

II. DISCUSSION

A. The Conviction

Smith attacks his conviction by raising two arguments that we need not discuss in depth in light of this court's recent decision in United States v. Allen, 954 F.2d 1160 (6th Cir.1992). ²

First, Smith argues that the state's referral of this case for federal prosecution violated his rights to due process and equal protection because there are no guidelines to regulate such referrals. But as this court held in Allen, "due process does not mandate that referrals be controlled through policy as long as prosecutors are not acting as rubber stamps and exert their own discretion as to whether or not to prosecute." Id. at 1166. Smith, like the defendant in Allen, offers no evidence of "rubber-stamping" in this case, and thus he "has failed to demonstrate that his due process or equal protection rights have been violated." Id.

Second, Smith argues that the district court erred in denying his motion to suppress because TBI's search of Smith's property violated Tennessee search and seizure law, which Smith argues does not recognize the federal "open fields" doctrine. But as the Allen court explained when it rejected this argument, "[t]he state may reserve certain rights including a stricter standard of search and seizure law; however, such a standard does not have to be applied in federal court." Id. at 1168 (citing United States v. Loggins, 777 F.2d 336, 338 (6th Cir.1985)). Federal search and seizure law applies in this federal prosecution, and Smith does not allege that TBI's search was illegal under federal law.

We affirm Smith's conviction.

B. The Prison Sentence

Smith attacks his prison sentence with two arguments that this court addressed in Allen. First, Smith argues that the government's destruction of the marijuana plants before Smith had the opportunity to count them resulted in a violation of his due process rights. In the absence of bad faith, however, the government's destruction of the plants does not constitute a violation of due process. Allen, 954 F.2d at 1168-69. Because Smith neither alleges nor offers evidence of bad faith on the government's part, we find no due process violation in this case. ³

Second, Smith contends that 21 U.S.C. § 841(b)(1)(B) and U.S.S.G. § 2D1.1(c) (Drug Quantity Table), which provide a minimum five-year sentence for the manufacture of 100 or more marijuana plants regardless of their weight, violate due process and equal protection rights. Like Allen, Smith first raised this argument in a motion for correction of sentence pursuant to Federal Rule of Criminal Procedure 35, and the district court denied the motion because Smith had already filed an appeal from the court's judgment. We agree with the government that Smith's case, like Allen's, is not an "exceptional case" that justifies our consideration of this issue that the district court did not consider. Allen, 954 F.2d at 1168.

The government also attacks Smith's prison sentence, arguing that the district court erred in imposing a sentence less than the statutory minimum of five years. We agree. Congress requires that, in the case of a violation involving 100 or more marijuana plants, the defendant "shall be sentenced to a term of imprisonment which may not be less than 5 years." 21 U.S.C.A. § 841(b)(1)(B) (West Supp.1992). After receiving evidence that Smith has a heart condition that leaves him with a fifty percent chance of surviving for two years, the district court imposed a sentence of only thirty-six months. The Sentencing Guidelines provide that where, as here, "the statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence." U.S.S.G. § 5G1.1(b) (Nov.1991). Despite Smith's compelling circumstances, the district court had no discretion to impose a sentence below the statutory minimum. United States v. Hodges, 935 F.2d 766, 772 (6th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 251, 116 L.Ed.2d 206 (1991). Because the court imposed a sentence less than the statutorily required minimum, we vacate the court's sentence. ⁴

C. The Forfeiture Order

Both parties appeal from the district court's order requiring criminal forfeiture of three of the four tracts that constitute Smith's farm. Smith contends that the district court erred by holding that the government need only prove its forfeiture case by a preponderance of the evidence. The government argues that the court erred by holding that each of the four tracts that constitute the farm must be treated as separate units of "property" for forfeiture purposes. Both parties contest the court's determinations as to which of the four tracts are forfeitable.

1. The Standard of Proof under 21 U.S.C. § 853

To obtain criminal forfeiture under section 853, the government must show that the...