U.S. v. Ulrich, 91-1048

• Decision Date: 27 December 1991
• Docket Number: No. 91-1048,91-1048
• Citation: 953 F.2d 1082
• Parties: UNITED STATES of America, Appellee, v. James Duke ULRICH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1082

953 F.2d 1082

UNITED STATES of America, Appellee, v. James Duke ULRICH, Appellant.

No. 91-1048.

United States Court of Appeals,

Eighth Circuit.

Submitted Aug. 27, 1991.

Decided Dec. 27, 1991.

Eldered Bell, Fayetteville, Ark. (argued) (Corinne Corley and Gregory House, on brief), for appellant.

David Ferguson, Asst. U.S. Atty., Fort Smith, Ark., argued, for appellee.

Before MAGILL, BEAM and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

James Duke Ulrich appeals his conviction and sentence for manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1). Ulrich argues that a comment by the district court ¹ deprived him of the presumption of innocence; that he was denied a fair opportunity to convince the jury to convict him of a lesser included possession offense; and that the district court committed multiple errors in applying the sentencing guidelines. We affirm.

In June 1990, United States Forest Service agents found a marijuana crop growing in the Ozark National Forest. On July 8, two hidden agents watched and videotaped as Ulrich, attired in camouflage clothing, pulled aside the fence surrounding the patch, inspected the plants, and began to pick them. The agents arrested Ulrich, pulled up the remaining plants, counted the total number of plants, and seized them. Agents later searched his home and seized a roll of fencing identical to that surrounding the patch.

At trial, Ulrich testified that he had grown the plants for personal use, and argued that he should therefore be acquitted of a § 841(a)(1) drug manufacturing offense. The government's case included evidence that there were a total of 110 plants, which at maturity would produce approximately 200,000 marijuana cigarettes. The jury convicted him of the manufacturing offense. At the sentencing hearing, the district court denied trial counsel's motion to withdraw and request for a continuance, ruled on Ulrich's objections to the presentencing report, and sentenced him to sixty-three months imprisonment, four years of supervised release, and a fine of $12,500.

The Presumption of Innocence Issue.

Ulrich first argues that the district court deprived him of the presumption of innocence by likening his criminal trial to a race with the prosecution. The district court's comment was made during jury selection, at the end of a colloquy with a prospective juror who was excused because of concern that he could not respect the presumption of innocence in a drug case:

THE COURT: You think the mere fact that he's charged by the Government may indicate in your mind at least because of your feeling about drugs ... he starts off behind at the starting line?

JUROR HILL: Yes, sir.

THE COURT: All right. You're excused.

Let me put it that way. I do that frequently. A trial is a little bit like a race. The rules say that when we start that race, the parties have to be lined up even at the starting line; in fact, in a criminal case, the Government may be a little bit behind at the starting line under the rules because they have to show beyond a reasonable doubt that the defendant is guilty; otherwise, the jury is not to find him to be guilty.

Now do any of you--If you view this as a race, do any of you believe that one side or the other has a head start before we ever start this case? That's really what voir dire is all about, to try and find those jurors who because of something that's in their mind have started one side or the other off ahead before we ever start the race.

At the end of the trial, the district court carefully instructed the jury that Ulrich was presumed innocent and that the government was required to prove its case beyond a reasonable doubt.

There was no objection to the district court's comment, and it was not plain error. See United States v. Carey, 898 F.2d 642, 644 (8th Cir.1990). Nor was this the kind of one-sided intervention by a trial judge that destroyed the impartiality of the trial, as in United States v. Singer, 710 F.2d 431 (8th Cir.1983). Thus, Ulrich's argument is without merit.

The Possession Defense.

Ulrich testified at trial, urging in his defense that his secret patch in the national forest was marijuana grown for his personal use, and therefore he did not deserve the enhanced penalties imposed by § 841(a)(1) on drug manufacturers. Ulrich argues on appeal that a number of the district court's rulings unfairly prevented him from presenting this defense to the jury--the refusal to read the entire statute as part of its instructions; the refusal to give an instruction on the lesser included offense of marijuana possession; and the denial of his motion for a judgment of acquittal or new trial.

All of these arguments are foreclosed by our decision in United States v. Klein, 850 F.2d 404 (8th Cir.), cert. denied, 488 U.S. 867, 109 S.Ct. 173, 102 L.Ed.2d 143 (1988), in which a defendant who grew 94 marijuana plants in his basement was convicted of a § 841(a)(1) manufacturing violation. In rejecting Klein's argument that he was at most guilty of a possession misdemeanor, we held:

[S]ection 841(a)(1) ... lists six prohibited acts, one of which is the manufacture of a controlled substance.... Section 802(15) defines manufacture as "the production ... of a drug or other substance." Section 802(22) states that the term production "includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance." From the evidence introduced at trial, it is clear that Klein planted, cultivated and grew marijuana. Whether he did so for his own use rather than for purposes of distribution is irrelevant. His actions violated section 841(a)(1).

850 F.2d at 405 (emphasis added).

In this case, Ulrich testified that he planted the seeds and cultivated the crop. This eliminated any dispute about whether he manufactured a controlled substance, so that a lesser included offense instruction would have been inappropriate. See United States v. Bernard Two Bulls, 940 F.2d 380 (8th Cir.1991). In addition, since his simple possession defense was unavailable as a matter of law, it was clearly within the district court's discretion to include only the relevant manufacturing portion of the statute in its instruction. Likewise, Ulrich's own testimony provided ample evidence supporting the district court's denial of his motion for acquittal or a new trial. See United States v. Felix, 867 F.2d 1068, 1071 (8th Cir.1989).

Sentencing Issues.

The jury returned a verdict of guilty on October 1, 1990, and the district court requested a presentence report. On November 14, 1990, Ulrich's trial counsel filed timely objections to the presentence report. That same day, Ulrich sent a letter to counsel purporting to terminate their relationship. Ulrich retrieved his file from counsel and prepared and submitted his own objections to the...