U.S. v. Wright

Decision Date18 September 1984
Docket NumberNos. 83-1205,s. 83-1205
Citation742 F.2d 1215
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Corey WRIGHT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Perry PUCCINELLI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Terry STEARNS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Terry STEARNS, Defendant-Appellee. to 83-1207, 83-1224.
CourtU.S. Court of Appeals — Ninth Circuit

Donald B. Ayer, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.

Steven D. Bauer, Sacramento, Cal., Doris L. Shockley, West Sacramento, Cal., Sandra Gillies, Sacramento, Cal., for defendant-appellant.

Appeal from the United States District Court For the Eastern District of California.

Before HUG and FERGUSON, Circuit Judges, and WATERS, * District Judge.

HUG, Circuit Judge:

Corey Wright, Perry Puccinelli, and Terry Stearns were indicted under 21 U.S.C. Secs. 841 and 846 for their participation in a scheme to grow, possess, and distribute marijuana. Count I charged the appellants with conspiracy to possess with intent to distribute a quantity of marijuana exceeding 1,000 pounds, thus subjecting the appellants to an enhanced penalty. Count II charged the appellants with the substantive crime of possession of marijuana with intent to distribute. Count II did not charge possession of more than 1,000 pounds of marijuana. Numerous issues are raised:

1. Whether the proof impermissibly amended the indictment;

2. Whether the evidence was sufficient to support the verdict;

3. Whether the penalty enhancement was proper on a charge of conspiracy 4. Whether the instruction on aiding and abetting was proper;

5. Whether the instruction on unanimity of the jury verdict was erroneous;

6. Whether admitted evidence violated the Bruton rule;

7. Whether the conviction of Stearns for conspiracy to possess less than 1,000 pounds of marijuana can stand when the conviction of his coconspirators was for conspiracy to possess over 1,000 pounds of marijuana.

The jury entered a verdict of conviction against all defendants on Count II. On the conspiracy count, Count I, the jury entered a verdict against Wright and Puccinelli for conspiracy to possess with intent to distribute a quantity of marijuana exceeding 1,000 pounds but convicted Stearns for conspiracy to possess with intent to distribute less than 1,000 pounds of marijuana. The district judge entered a judgment of acquittal on the conspiracy count against Stearns. We uphold the verdict of the jury on all counts. We affirm the judgments of conviction as entered and hold that the district court erred in setting aside the jury verdict convicting Stearns of conspiracy.

I FACTS

Appellants were charged with operating a marijuana plantation in northeastern California. The evidence at trial showed that Wright purchased 120 acres of land in a secluded area. The parcel included a meadow surrounded by heavily wooded areas. Wright arranged for a well to be dug and purchased a pump and generator.

The plantation remained hidden until late August 1982, when a deer hunter discovered it and alerted the Plumas County Sheriff. Sheriff's surveillance teams observed that a trailer had been moved onto the property and painted with camouflage paint, as had the generator. An elaborate irrigation system had been erected, including overhead sprinklers and a network of plastic pipe that had been laid above ground and camouflaged. Nearly 4,500 plants were growing, about half of them approximately five feet tall. The surveillance teams also observed and later identified Puccinelli and Stearns moving around the plantation and caring for the plants. They noted that Stearns sometimes carried a gun.

Following a raid by the surveillance team, the plants were harvested by the government agents. Shortly after harvesting they weighed 1,160 pounds. Two plastic garbage bags of marijuana leaves were also seized. Together these weighed fifty pounds.

Appellants were indicted in Count I for conspiracy to possess in excess of 1,000 pounds of marijuana with intent to distribute and in Count II for possession of marijuana with intent to distribute. 1 Jury verdicts were entered convicting all defendants on Count II. The verdicts convicted Wright and Puccinelli on Count I of conspiring to possess with intent to distribute in excess of 1,000 pounds of marijuana but convicted Stearns of the lesser included offense of conspiring to possess less than 1,000 pounds of marijuana. The district court granted Stearns's post-trial motion for a judgment of acquittal on Count I.

On appeal, each man asserts several challenges to his conviction. The Government cross appeals the judgment of acquittal granted Stearns on Count I.

II AMENDMENT OF INDICTMENT

Appellants moved for acquittal under Fed.R.Crim.P. 29 on the basis that the Government's proof at trial had constructively amended Counts I and II of the indictment. This claim was based on appellants' analysis of 21 U.S.C. Sec. 841(a)(1), which makes it unlawful "to manufacture, distribute, or dispense, or possess ..." a "An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by the prosecutor or a court after the grand jury has passed them." United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir.1984) (emphasis omitted) (quoting United States v. Cusmano, 659 F.2d 714, 718 (6th Cir.1981)). An amendment is made when the court instructs the jury on a violation that is not charged in the indictment but that is consistent with the proof adduced at trial. United States v. Pazsint, 703 F.2d 420, 423 (9th Cir.1983); United States v. Stewart Clinical Laboratory, Inc., 652 F.2d 804, 807 (9th Cir.1981). The effect of such an instruction is to permit conviction on a charge not made by the grand jury. Stirone v. United States, 361 U.S. 212, 218-19, 80 S.Ct. 270, 273-274, 4 L.Ed.2d 252 (1960).

controlled substance. 21 U.S.C. Sec. 802(14) defines "manufacture" as "production," which is defined in turn in section 802(21) to include "planting, cultivation, growing, or harvesting...." Defendants contended that under section 841(a)(1) cultivation and possession are separate, mutually exclusive offenses. They argued that while the indictment charged them with possession, the Government's evidence at trial established cultivation, constructively amending the indictment.

In this case, appellants were convicted on the facts presented to the grand jury; the facts adduced at trial were identical to those alleged in the indictment. The indictment labeled those facts a violation of section 841(a)(1)'s prohibition against possession of marijuana with intent to distribute. The jury was instructed on the elements of possession with intent to distribute and was specifically informed "that although cultivation of marijuana is a violation of federal law, the defendants are not charged with violating that law in this case." Appellants did not object to that instruction.

We agree that the evidence points more clearly to a violation of the cultivation provision of the statute. However, the cultivation and possession provisions are not mutually exclusive but overlapping. It is quite possible to possess with intent to distribute the marijuana that is being cultivated. As drafted, the indictment gave appellants sufficient notice of the charges against them. See United States v. Gordon, 641 F.2d 1281, 1283 (9th Cir.), cert. denied, 454 U.S. 859, 102 S.Ct. 312, 70 L.Ed.2d 156 (1981); United States v. Bohonus, 628 F.2d 1167, 1174 (9th Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3026, 65 L.Ed.2d 1122 (1980). The case proved by the Government was entirely consistent with that notice, and we find no indication that any action of the prosecutor or trial judge rendered the conviction inconsistent with the grand jury's charge.

III SUFFICIENCY OF THE EVIDENCE

Under Count II of the indictment, Stearns was convicted of possession of marijuana with intent to distribute. He contends there was insufficient evidence to support this conviction. Stearns argues that his role in the conspiracy was merely that of a hired hand and that he therefore lacked dominion over the marijuana and the authority to dispose of it.

Stearns's argument raises interesting questions concerning what constitutes "possession" of growing crops in the field. The inquiries this issue inspires include whether Wright, as landowner, was sole possessor of the plants until they were harvested or whether the other conspirators' status as joint venturers also made them possessors of the unharvested plants. However, this case does not require us to resolve these questions. Stearns did not propose jury instructions that made possession of the plants contingent upon ownership of the land. He made no objection to the standard possession instruction given by the court. Moreover, not all of the marijuana seized at the plantation was unharvested. The two bags of dried marijuana leaves were an adequate basis for the possession charge. The bags were stacked immediately adjacent to the trailer. Evidence

                found inside the trailer permitted the jury to conclude that Stearns lived there and to associate the marijuana with his residence.  There was also evidence of conduct by Stearns that was intended to exclude others from the area.  This evidence was sufficient for a rational juror to find that Stearns had participated in possession of the two bags of marijuana with intent to distribute them.   See Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979)
                
IV PENALTY ENHANCEMENT PROVISION

Count I of the indictment charged Wright and Puccinelli with a conspiracy "to possess with intent to distribute marijuana ... in a quantity exceeding 1,000 pounds." This language incorporated 21 U.S.C. Sec. 841(b)(6), which mandates imposition of enhanced penalties for...

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