US v. Miller, CR 3-87-53.

• Decision Date: 16 February 1988
• Docket Number: No. CR 3-87-53.,CR 3-87-53.
• Citation: 680 F. Supp. 1189
• Parties: UNITED STATES of America v. Andy Kenneth MILLER, Jr. and Patrick Nelson Acuff.
• Court: U.S. District Court — Eastern District of Tennessee

680 F. Supp. 1189

UNITED STATES of America v. Andy Kenneth MILLER, Jr. and Patrick Nelson Acuff.

No. CR 3-87-53.

United States District Court, E.D. Tennessee, N.D.

February 16, 1988.

James R. Dedrick, Asst. U.S. Atty., Knoxville, Tenn., for plaintiff.

Ralph Harwell, Randolph Nichols, Knoxville, Tenn., for Miller.

Gerald C. Russell, Maryville, Tenn., for Acuff.

MEMORANDUM OPINION

JARVIS, District Judge.

Defendants Andy Kenneth Miller, Jr. and Patrick Nelson Acuff have filed a pre-trial motion for a ruling in limine on the issue of whether or not the Government will be permitted to include the weight of plant "stalks" in calculating the amount of marijuana for purposes of enhancement under 21 U.S.C. § 841(b)(1)(A)(vii). The issue is one of first impression. For the reasons set out below, the court will not consider the weight of plant "stalks" if enhancement of sentence should prove necessary.

Defendants are charged with the manufacture and possession with intent to distribute a controlled substance, marijuana, in violation of 21 U.S.C. § 841(a). The indictments notify defendants that the Government intends to seek enhancement of defendants' punishment under 21 U.S.C. § 841(b)(1)(A)(vii) since it is charged that the amount of marijuana exceeded 1,000 kilos. The indictment charges that the Government seized approximately 1,770 marijuana plants weighing approximately 5,600 pounds. At the time it was seized, the marijuana was in various places: some of it was growing in two fields, some of it was located in a truck, and some of it was drying in two sheds. The plants were weighed, including the stalks, samples were taken, and then the remainder was burned. The defendants argue that the "mature stalks" and other materials which are specifically excluded from the definition of marijuana set out in 21 U.S.C. § 802(16) must be excluded in considering whether this is an appropriate case for sentence enhancement.

21 U.S.C. § 841 provides for sentence enhancement in, inter alia, the following circumstances:

(b) Penalties.

(1)(A) In the case of a violation of subsection (a) of this section involving — (vii) 1,000 kilograms of more of a mixture or substance containing a detectable amount of marihuana;

21 U.S.C. § 841(b)(1)(A)(vii). The Government argues that the entire plants, including the stalks, constitute "a mixture or substance containing a detectable amount of marijuana", and therefore the entire weight must be considered if the question of enhancement arises.

Defendants contend that in interpreting the enhancement provision, the definitional section of the Act must be taken into account. In the definitional section "marihuana" is defined thusly:

The term "marihuana" means all parts of the plant, Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

21 U.S.C. § 802(16).

The enhancement provision was enacted as part of the Narcotics Penalties and Enforcement Act of 1986. The legislative history of the Act indicates that one of its principal purposes was to attack major drug traffickers, the manufacturers or heads of organizations, who are responsible for creating and delivering very large quantities of drugs. H.R.REP. No. 99-845, Part I, 99th Cong., 2d Sess. 11 (1986). The legislative history also makes one short reference that sheds some light on the legislative intent in using the term "substance or mixture":

... The Committee's statement of quantities is of mixtures, compounds or preparations that contain a detectable amount of the drug — these are not necessarily quantities of pure substance. One result of this

...