U.S. v. Wood, s. 94-7092

• Decision Date: 09 June 1995
• Docket Number: Nos. 94-7092,94-7096 and 94-7097,s. 94-7092
• Citation: 57 F.3d 913
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Nathaniel WOOD and David Leslie Wood, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 913

57 F.3d 913

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Nathaniel WOOD and David Leslie Wood, Defendants-Appellants.

Nos. 94-7092, 94-7096 and 94-7097.

United States Court of Appeals, Tenth Circuit.

June 9, 1995.

Gene Stipe and Tim Maxcey of Stipe Law Firm, McAlester, OK, on the brief, for defendants-appellants.

John Raley, U.S. Atty., and Dennis A. Fries, Asst. U.S. Atty., on the brief, for plaintiff-appellee.

Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges.

SEYMOUR, Chief Judge.

Thomas Nathaniel Wood and David Leslie Wood were charged with manufacturing marijuana in violation of 21 U.S.C. Sec. 841(a)(1), (b)(2), and 18 U.S.C. Sec. 2, possessing marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, maintaining a place for the purpose of manufacturing, distributing or using marijuana in violation of 21 U.S.C. Sec. 856(a)(1) and 18 U.S.C. Sec. 2, and conspiring to commit the above offenses in violation of 21 U.S.C. Sec. 846. A fifth count charging both defendants with managing a building for the purpose of unlawfully manufacturing, distributing, or using marijuana in violation of 21 U.S.C. Sec. 856(a)(2) was dismissed prior to trial. A jury convicted both defendants on all the remaining counts. The trial judge sentenced Thomas Wood to 97 months and David Wood to 78 months. Defendants appeal, challenging both their convictions and their sentences. We affirm. ¹

I.

The evidence at trial, viewed most favorably to the government, see United States v. Richard, 969 F.2d 849, 856 (10th Cir.), cert denied, --- U.S. ----, 113 S.Ct. 248, 121 L.Ed.2d 181 (1992) and --- U.S. ----, 113 S.Ct. 1009, 122 L.Ed.2d 157 (1993), establishes the following facts. Eugene Norwell, a law enforcement officer with the National Forest Service, was performing aerial surveillance on June 10, 1993 for the Forest Service when he observed three patches of marijuana growing on National Forest land. The next day he did a ground check of the area he had spotted, traveling beyond the end of a Forest Service spur road about twenty yards to the first patch of seven marijuana plants. On a path further into the woods he discovered a second patch of fifty-three plants and ten yards beyond he found a third patch of twenty-eight plants. Officer Norwell testified that the plants were growing out of man-made mounds and that the vegetation around the plants had been cut away with a sharp instrument in order to expose the plants to sunlight. He further testified that the patches were located away from recreation areas in a remote place without hiking trails that received very little traffic.

Officer Norwell arranged for the installation of a remote camera system at the second patch which would begin videotaping whenever anything moved into its range. Gary Rose, another Forest Service law enforcement officer, set up the camera ten to fifteen feet away from the plants in the second patch. He returned to check the camera about fifteen times before it was removed. On June 29, when he returned to service the camera, he noticed fresh tire tracks and footprints in the area. He reviewed the videotape, which showed that two individuals had been in the patch on June 26. Officer Norwell identified one of them as defendant Thomas Wood. The other person was subsequently determined to be Thomas Wood's brother, defendant David Wood. Defendants appeared to be "working" the plants, topping them to promote a greater volume of growth. On August 3 when Officer Rose returned, he noticed footprints and found that, although the plants had previously been observed to be drying out and turning yellow due to the lack of rain, they now had better color, indicating that someone had been at the patch to water and fertilize the plants. He had also discovered a milk jug cap in the area. The videotape showed that defendants had been at the patch July 24, grooming the plants and carrying plastic jugs. On September 27 when Officer Rose went to the patch, he noticed some tire tracks on the service road and discovered that the plants at the first patch were missing, although the camera did not show any activity at the second patch. When he returned on October 12, he noticed a set of tracks leading into the area. Several of the plants at the other patches had been removed and the remaining plants had been heavily trimmed. The videotape revealed that defendants groomed the patch on October 9. On October 20, the officers removed the remaining twenty-four plants from the second and third patches and took samples of them.

Federal agents executed a search warrant on October 30 at the home of Thomas Wood's parents, where Mr. Wood had lived during the summer. The agents discovered a paper sack containing marijuana in an upstairs bedroom, a zig-zag roll of papers, marijuana seeds, a pipe containing marijuana, ziplock baggies, and a statement of earnings. In addition, an agent saw a set of scales, a roach clip, and marijuana seeds in the front seat of an automobile parked in the front yard and belonging to Thomas Wood. The agent also observed the root of a marijuana plant protruding from the back of the closed car trunk. Upon opening the trunk, the agents discovered twelve freshly pulled marijuana plants. When agents executed a search warrant at David Wood's residence, they discovered a small portable set of scales next to a box of plastic baggies, marijuana seeds, pipes, hemostats, roach clips, six one-quart baggies of processed marijuana, and seven marijuana stalks.

Thomas Wood testified that he lived with his parents in their house two months a year and lived the remainder of the year in Arkansas. He admitted visiting the marijuana patches, asserting that he and his brother had come across them while looking for landscape plants pursuant to a Forest Service permit. He denied planting, grooming, or watering the marijuana, although he did admit he had picked some leaves for personal use. He also admitted throwing down some seeds by the Kiamichi River several miles from the three patches under surveillance and stated that the plants in the car had come from the river. He said that he and his brother had agreed to go to the three patches and took turns driving there. David Wood's testimony was consistent with that of his brother. Both defendants admitted using marijuana and growing it for personal use but denied selling it or growing the plants in the three patches.

On appeal, both defendants contend that: 1) the evidence is insufficient to support their convictions on any count; 2) the court erred in its instruction on the definition of "manufacture" as used in 21 U.S.C. Sec. 856(a)(1); 3) the court erred by including in its conspiracy instruction a reference to the count that was dismissed before trial; 4) the court incorrectly calculated their sentences by including in the drug quantity amounts allegedly possessed by defendants for their personal use; and 5) the court erroneously enhanced their sentences for obstruction of justice based on perjured testimony. In addition, David Wood argues that he was denied effective assistance of counsel when the court denied his request for a new attorney or alternatively for a continuance. Thomas Wood argues individually that the evidence was insufficient to support his conviction under section 856(a)(1) for maintaining a place for the purpose of distributing or using marijuana because the place in question was owned by his parents and he only stayed there two months a year.

II.

Immediately prior to trial, the court received a complaint from David Wood indicating that he was not satisfied with his attorney's preparation for trial. The court held a short hearing on the matter but took no sworn testimony. Mr. Wood asserted that he had been out-of-state on one of the dates the government alleged he appeared on tape at the marijuana patch. Mr. Wood stated that although he had informed his lawyer, the lawyer had not followed up on it. The attorney responded that he had originally thought Mr. Wood's alibi was good and had filed an alibi defense. Subsequently, however, he and the government agents discovered that the report misstated the date by two days and that Mr. Wood did not have alibi evidence for the actual date shown on the videotape. Mr. Wood also asserted that the government report contained mistakes and that he did not have an opportunity to point them out to his attorney. The attorney responded that he had been over the report several times, and that although he spoke with Mr. Wood almost daily, Mr. Wood had not indicated until the morning of trial that he wanted to review the material with his counsel. The attorney stated that he felt prepared to go to trial. The court denied Mr. Wood's request for a new attorney, and the trial proceeded as scheduled. On appeal, Mr. Wood contends that he was denied effective assistance of counsel because he and his attorney were not ready for trial. He contends that if he had been able to go over the report with counsel to point out disputed testimony, the result would have been different.

This court has held that "[t]he preferred avenue for challenging the effectiveness of defense counsel in a federal criminal trial is by collateral attack under 28 U.S.C. Sec. 2255." Beaulieu v. United States, 930 F.2d 805, 806 (10th Cir.1991). We have pointed out that such allegations usually are not appropriately considered on direct appeal because the defendant may not realize he has a meritorious claim until he begins collateral proceedings with new counsel, and because "ineffectiveness claims frequently require consideration of evidence not contained in the record on direct appeal." Id. at 807. Nonetheless, we have recognized rare occasions in which we can make a fair evaluation of an ineffectiveness claim on direct appeal: "situations where the defendant is no longer represented by trial counsel and it is evident that resolution of the...