US v. Montgomery

• Decision Date: 13 November 2009
• Docket Number: Criminal Action No. 03-20127-KHV. Civil Action No. 08-2318.
• Citation: 676 F. Supp.2d 1218
• Parties: UNITED STATES of America, Plaintiff, v. Daniel MONTGOMERY, Defendant.
• Court: U.S. District Court — District of Kansas

676 F.Supp.2d 1218

UNITED STATES of America, Plaintiff, v. Daniel MONTGOMERY, Defendant.

Criminal Action No. 03-20127-KHV. Civil Action No. 08-2318.

United States District Court, D. Kansas.

November 13, 2009.

Leon J. Patton, Sheri P. McCracken, Office of United States Attorney, Kansas City, KS, for Plaintiff.

William F. Cummings, Cummings & Cummings, LLC, Wichita, KS, for Defendant.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

On January 19, 2005, after a two-day trial, a jury found defendant guilty of knowing and intentional possession of 100 or more marijuana plants with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. See Doc. # 47. On March 1, 2007, the Court sentenced defendant to 120 months in prison and eight years of supervised release. See Doc. #85. This matter is before the Court on defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody (Doc. #111) filed July 10, 2008. In that motion, defendant claims that trial counsel was ineffective in (1) not letting him testify at trial and (2) not filing a motion to dismiss based on the government's destruction of evidence. Defendant also claims that he is actually innocent.¹ On June 5 and August 28, 2009, the Court held an evidentiary hearing on those issues. For reasons stated below, the Court now sustains defendant's motion.

I. Facts

Based on the case record and evidence presented at the Section 2255 hearing, the Court finds as follows:²

A. Events Before Trial

On May 5, 2003, DEA agent Brent Coup led a group of law enforcement officers in executing a search warrant on defendant's residence in Kansas City, Kansas. Inside the house, they found a large marijuana grow in the back room. Agents also found a small grow room with clones and mother plants. Agents testified that they counted 101 marijuana plants with roots, stems and leaves and collected ten samples which tested positive for marijuana.³ Agents photographed and video taped the plants both in and out of their grow blocks. The photographs and video tape do not reveal the number of plants, however, so it is impossible to determine the number of plants from the photographs and video tape.⁴

Two days after the search, the United States Attorney's Office directed Coup to destroy all of the marijuana plants except the ten samples. Specifically, Special Assistant United States Attorney Sheri McCracken wrote Coup as follows:

Per our conversation of May 5, 2003, all evidence in the above listed case was photographed or video taped in its entirety, additionally 10 samples were retained for testing purposes as well as one of the light units. Please dispose of or destroy the remaining marijuana plants according to your department policy.

Exhibit A to Defendant's Supplemental Memorandum In Support Of His Motion Under 28 U.S.C. § 2255 ("Defendant's Supplemental Memorandum") (Doc. # 132) filed August 3, 2009. On May 23, 2003, DEA agents destroyed all the marijuana plants.

Four months later, on September 18, 2003, the grand jury issued an indictment which charged that on or about May 5, 2003, defendant knowingly and intentionally possessed with intent to distribute 100 or more marijuana plants, a controlled substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. See Doc. # 1. In charging possession with intent to distribute 100 or more marijuana plants, the government invoked 21 U.S.C. § 841(a) and (b)(1)(B), which impose higher penalties than those which pertain to unspecified or lesser quantities of drugs.⁵ To convict defendant under applicable law at that time, the government had to prove beyond a reasonable doubt that defendant possessed at least 100 marijuana plants with intent to distribute. See United States v. Montgomery, 468 F.3d 715, 719 (10th Cir.2006). Because the drug quantity exposed defendant to a higher maximum sentence under Section 841(b)(1)(B), the government had to allege and prove that amount to the satisfaction of a jury beyond a reasonable doubt. See United States v. Ramirez, 43 Fed.Appx. 358, 360-61 (10th Cir.2002) (Section 841(b)(1)(C) set maximum penalty for Section 841(a) violation unless quantity of drugs for enhanced penalty alleged in indictment and found by jury beyond reasonable doubt); United States v. Cernobyl, 255 F.3d 1215, 1218 (10th Cir.2001); United States v. Jones, 235 F.3d 1231, 1236-37 (10th Cir.2000). If the case had involved 99 plants or less, however, the government would not have prosecuted the case. See Jury Trial—Testimony of Brent Coup (Doc. #69) filed December 12, 2005 at 59:1-6.

Defense counsel Mark Sachse did not challenge the government's destruction of evidence prior to trial.

B. Trial

On January 18 and 19, 2005, the Court held a two-day jury trial. Defendant did not testify.

At trial, the only evidence regarding the number of plants came from Agents Coup and Carillo, who each testified that they had counted 101 plants with roots, stems and leaves. See Jury Trial—Testimony of Brent Coup (Doc. # 69) at 55:16-19; Jury Trial (Doc. #71-1) filed December 12, 2005 at 158:6-8.⁶ The jury saw photographs and video tape which agents had taken on May 5, 2003, but they did not disclose the number of plants or whether all of the plants had formed roots.

Regarding the photographs, Agent Coup testified that as case agent, he asked agents to photograph certain things which he found to be significant based on his training and experience. See Jury Trial— Testimony of Brent Coup (Doc. # 69) at 21:24 to 22:3. Coup testified that agents laid the plants on top of saw horses so that they could photograph the root systems, stems and leaves. Id. at 55:23 to 56:4. Coup stated that after they had photographed and taken samples from the plants, agents stuffed them into two large lawn bags, where they would grow mold and fungus. Id. at 56:5-14. Coup testified that he did not have facilities to dry out the marijuana, and that random sampling was an acceptable practice under DEA protocol. Id. at 57:11-25. Coup stated that agents did not keep the plants because they did not have sufficient storage facilities and the plants would mold and stink. Id. at 72:5-8.

Coup testified that agents did not keep a visual record of the number of plants. Id. at 92:22 to 93:4.⁷ Coup stated that it was not possible to take a picture which showed the number of plants. Id. at 89:18 to 90:8.⁸ Coup testified that it would have been possible to keep a sample from each of the 101 plants, but that DEA protocol required him to take samples from only ten plants. Id. at 91:12 to 92:21. Coup stated that he gave a placard to Officer Carillo, thinking that he would take a picture of the entire grow with the placard stating the number of plants. Id. at 83:25 to 84:25.⁹

Carillo testified that he took photographs at Coup's request, and that he was not really sure what he was photographing. See Jury Trial (Doc. #71-1) at 132:13-17.¹⁰ Carillo testified that on May 23, 2002, agents destroyed the plants and defendant did not have a chance to test them. Id. at 159:23 to 161:5.¹¹

DEA Special Agent Michael Scalise testified that he was responsible for video taping the marijuana grow. Id. at 168:13-16. Specifically, Scalise stated that he was charged with filming "the grow in the residence and components of the grow, the plants, the roots, the stems, the leaves of that grow." Id. Scalise testified that the purpose of his video tape was to "document it for court purposes, to show that the plant had a root structure, a stem and leaves." Id. at 169:1-5. Scalise testified that he was not charged with documenting the number of plants in the video. Id. at 172:9-13.¹² Coup testified that the video did not show the counting of the plants, and he wished he would have done that. See Jury Trial—Testimony of Brent Coup (Doc. # 69) at 86:3-17.¹³

At the close of evidence, at the jury instruction conference, defense counsel moved for a directed verdict of acquittal based on insufficient evidence. See Jury Trial—Defendant's Motion For Directed Verdict For Acquittal And Instruction Conference (Doc. # 70) filed December 12, 2005 at 2:4-10. Counsel argued that the evidence was insufficient to support a finding of 100 or more plants because the government did not present expert testimony that each plant was marijuana. Id. at 2:10 to 4:8, 5:2 to 20. The Court ruled that construed in the light most favorable to the government, the record contained ample evidence that the plants in question were marijuana. Id. at 5:23 to 6:3.

Defense counsel then stated that to preserve the issue for appeal, he was requesting that the Court dismiss the case "as a denial of due process based on the destruction of the evidence." Id. at 6:9-12. Counsel stated that in a couple of cases involving destruction of marijuana, the Tenth Circuit had found no bad faith, but he wanted to preserve the record in case "they" found bad faith in this case. Id. at 6:20-22. Counsel did not propose a jury instruction regarding spoilation of evidence, so it is not clear whether counsel intended for the jury or the Tenth Circuit to address the question of bad faith destruction of evidence. In any case, counsel implied that he did not think bad faith was present and he stated that he was not going to argue the issue any longer. Id. at 6:7-22.¹⁴ The Court stated that counsel had made his record and observed that it had heard no evidence which suggested bad faith. Id. at 6:23-25.

In closing argument, Sachse argued that the government had not proved that defendant had 100 plants. See Jury Trial (Doc. # 71-1) at 240:4 to 246:16. He pointed out that agents had retained samples of only ten plants, and that the forensic chemist had testified that she would not state that a plant was marijuana unless she had tested it. Id. at 240:4 to 241:16. Sachse asserted that because agents had not video taped the counting or filled in the placards, the...