UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5153
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BERTRAND ANDER MILES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:07-cr-00214-HEH-1)
Argued: December 5, 2008 Decided: March 25, 2009
Before WILLIAMS, Chief Judge, and WILKINSON and GREGORY, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Robert James Wagner, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellant. Richard Daniel
Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia,
for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public
Defender, Alexandria, Virginia, for Appellant. Chuck Rosenberg,
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury in the Eastern District of Virginia convicted
Bertrand Ander Miles of manufacturing and conspiring to
manufacture more than one-hundred marijuana plants, and of
maintaining a place for the distribution, storage, or use of
marijuana. Miles appeals his conviction. For the reasons that
follow, we affirm.
I.
This case began with a DEA task force investigation of a
hydroponics 1 store in Richmond, Virginia. Officers performed a
“trash pull” of the store’s garbage and discovered credit card
receipts of purchases made by Miles from November 2006 to
January 2007. As a result of the investigation, the task force
obtained and executed a search warrant on Miles’ property in May
2007. Robert Nelson, Miles’ landlord and housemate, owned the
house, shed, and land searched. Miles rented the upstairs
section of Nelson’s home.
Miles began growing and smoking marijuana to treat his
cluster headaches. Nelson agreed to allow Miles to use the shed
1
“Hydroponics” is “[t]he cultivation of plants by placing
the roots in liquid nutrient solutions rather than in soil;
soilless growth of plants.” Webster’s Unabridged Dictionary 938
(2d ed. 2001)
2
on the property to grow marijuana as long as it was for Miles’
personal use. Further, Nelson helped Miles move his hydroponic
equipment to the shed and even equipped the shed with air-
conditioning and an exhaust vent.
When police searched the house and property, they found
evidence of marijuana manufacturing. Police found hydroponic
growing apparatus and marijuana growing under grow lights in an
upstairs closet. Officers also found a scale and a smoking
device. Additional marijuana and growing equipment were found
in the shed.
The precise number of marijuana plants seized was highly
contested at trial. The Government counted sixty-three plants:
twenty-nine in the upstairs closet, twenty-five in the shed, and
nine clones under a “cloning dome” in the shed. Miles conceded
that the jury could have counted thirty-four seized mature
plants with fully functioning root balls. But, Miles argued
that the rest of the seized materials were at most cuttings or
cloning attempts, and that the Government did not provide
evidence that his growing attempts “had taken root and started
growing.” (Pet’r Br. 7.) Officer Phillip Johnakin, who
participated in the search and did the counting, testified that
successful clones may take seven to ten days before they start
growing roots. In his written report, the officer did not
indicate that all of the cuttings had root systems, although at
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trial he testified that he remembered all of the cuttings having
roots.
At trial, the Government presented the testimony of three
“jailhouse informants,” who claimed that Miles bragged about his
success and expertise at growing marijuana. One of these
witnesses, Anthony Harrelson, testified that Miles claimed to
have grown more than one-hundred marijuana plants.
Ultimately, the jury found Miles guilty on three counts:
Count One, conspiracy to manufacture more than one-hundred
marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1) (2006),
841(b)(1)(B) (2006), and 846 (2006); Count Two, manufacturing
and possessing with intent to distribute more than one-hundred
marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1)(2)
(2006), 841(b)(1)(B) (2006); and Count Three, maintaining a
place for the distribution, storage, or use of marijuana, in
violation of 21 U.S.C. § 856(a)(2) (2006). The court granted
Miles’ motion for judgment of acquittal on Count Four—possession
of a firearm by an unlawful user of controlled substances, in
violation of 18 U.S.C. § 922(g)(3) (2006)—because the Government
failed to prove the firearm recovered was operable.
The district court sentenced Miles to concurrent mandatory
minimum sentences of sixty months on Counts One and Two.
Additionally, the court sentenced Miles to twenty-seven months
on Count Three to run concurrently with Counts One and Two. The
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court imposed a five-year term of supervised release and a
forfeiture order in the amount of $20,000. Miles timely appeals
his conviction.
II.
A.
The first issue before this Court is whether the jury was
presented with sufficient evidence to support its finding that
Miles manufactured and conspired to manufacture more than one-
hundred marijuana plants. Miles has not demonstrated that the
evidence, when viewed in the light most favorable to the
Government, was insufficient on these counts.
This Court has found that a jury verdict must be sustained
“‘if there is substantial evidence, taking the view most
favorable to the Government, to support it.’ This is the
familiar standard for review of a defendant’s claim that the
evidence is insufficient to sustain the jury’s verdict of
guilty.” United States v. Steed, 674 F.2d 284, 286 (4th Cir.
1982) (citing Glasser v. United States, 315 U.S. 60, 80 (1942),
overruled on other grounds). Substantial evidence is “evidence
that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996)(en banc).
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Miles argues that one-hundred marijuana plants should not
be attributed to him because the evidence to support that amount
is not credible. Officer Johnakin testified that he personally
counted sixty-three of Miles’ marijuana plants and that each
plant had roots. We must credit this testimony over Miles’ mere
assertion that the officer conveniently added this information
on the stand. Harrelson testified that Miles claimed to have
raised “at least well over 100” (J.A. 180) marijuana plants.
Although the only testimony that brought the number of plants
from sixty-three to one-hundred was the testimony of Harrelson,
a jailhouse informant, the evidence when viewed in the light
most favorable to the Government is sufficient to support Miles’
conviction. Miles acknowledges that this Court does not
ordinarily reweigh the district court’s credibility findings.
(Pet’r. Br. 16-17.) We find no reason to establish a new rule
here.
B.
Next, whether jury instructions were properly given is a
question of law to be reviewed de novo. United States v. Stitt,
250 F.3d 878, 888 (4th Cir. 2001) (citing United States v.
Morrison, 991 F.2d 112, 115 (4th Cir. 1993)). However, a
district court’s decision concerning which instructions to give
is reviewed for abuse of discretion. United States v. Abbas, 74
F.3d 506, 513 (4th Cir. 1996). Furthermore, a district court’s
6
refusal to give a proposed instruction is reversible error only
if the omitted instruction was correct, not substantially
covered by the court’s actual instruction, and so important to
an issue in the trial that the failure to give the instruction
seriously impaired the defendant’s defense. United States v.
Lewis, 53 F.3d 29, 32 (4th Cir. 1995).
Miles contends that the district court erred in rejecting
his proposed jury instruction. Specifically, counsel proposed a
definition instruction to read, “A marijuana ‘plant’ is an
organism having leaves and a readily observable root formation,
which would include roots, a rootball, or root hairs.” (J.A.
16.) The language for this proposed instruction came from the
U.S. Sentencing Guidelines Manual. See U.S. Sentencing
Guidelines Manual § 2D1.1 cmt. n.17 (2008).
Miles argues that without his instruction the jury was
without guidance and may have mistakenly thought that “a mere
leaf or stem or seed constituted a ‘plant.’” (Pet’r Br. 21.)
Moreover, he argues that this Court has no way of knowing that
the jury did not employ this incorrect analysis. Miles further
argues that although Officer Johnakin testified that root
formation was a requisite for his characterization of a
marijuana plant, the jury was never informed of why this was
important. Thus, Miles contends that the court’s failure to
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give his instruction seriously impaired his ability to present
an adequate defense.
The district court’s reason for rejecting Miles’ proposed
instruction was that jurors did not have to be botanists to
count plants. (J.A. 296.) However, Miles maintains that there
is a vitally important distinction between what a layperson
would deem a plant and what is considered a marijuana plant for
the purposes of the Sentencing Guidelines. In essence, Miles
argues, counting is not the problem; the problem is knowing what
to count.
In order to evaluate a district court’s refusal to give a
proposed instruction we apply the Lewis test, which is composed
of a three-part analysis: 1) whether the instruction was
correct; 2) not substantially covered by the court’s actual
instruction; and 3) so important to an issue in the trial that
the failure to give an instruction seriously impaired the
defendant’s defense. Lewis, 53 F.3d at 32. The Government
admits that Miles satisfied the second prong of the Lewis test,
as no part of the jury instructions addressed the meaning of the
term “marijuana plant.” Thus, the issues in dispute are whether
the proposed instruction was correct and whether it was
necessary.
8
i.
The Supreme Court has held that federal drug statutes need
not be interpreted through the lens of the advisory Federal
Sentencing Guidelines. See, e.g., Kimbrough v. United States,
128 S. Ct 558, 570-72 (2007) (finding that the Sentencing
Guidelines were not meant to modify relevant law and noting that
“[w]e do not lightly assume that Congress has omitted from its
adopted text requirements that it nonetheless intends to
apply.”) (quoting Jama v. Immigration and Customs Enforcement,
543 U.S. 335, 341 (2005)); Neal v. United States, 516 U.S. 284
(1996). When the Supreme Court interpreted Neal in Kimbrough it
stated that the United States Sentencing Commission “had not
purported to interpret the statute and could not in any event
overrule our [prior case law].” Kimbrough, 128 S. Ct. at 571-
572 (citing Neal, 516 U.S. at 287). Miles has offered no reason
to read an application note in the United States Sentencing
Guidelines as modifying or defining the plain language of a
federal drug statute.
Under 21 U.S.C. § 802(16) (2006), Congress defined
marijuana (or “marihuana”) as it is used in 21 U.S.C. § 841(b)
(2006). Marijuana is considered “all parts of the plant
Cannabis sativa L.,” including seeds. 21 U.S.C. § 802(16).
Congress gave no separate definition for a “marijuana plant”;
instead it gave the courts a clear unambiguous definition.
9
There is no case law or statutory authority to support Miles’
contention that a jury instruction, derived from a comment in
the Sentencing Guidelines, which requires a plant to have a root
system in order to be considered a “marijuana plant,” is
correct.
ii.
Assuming arguendo, that the instruction was correct, the
record reflects that the instruction was not necessary for
Miles’ defense. The Government never refuted Miles’ definition
of a marijuana plant. Miles’ claimed the court needed to
clarify for the jury that a marijuana plant has a root system.
However, the Government’s key witness, Officer Johnakin, clearly
stated that each plant he counted had a root system.
Since Officer Johnakin claimed that all sixty-three plants
that he counted had root balls, the jury only had to decide
whether they believed him, and if so, whether Miles had
manufactured and possessed over one-hundred plants. Harrelson
testified that Miles took pride in growing marijuana (J.A. 179);
certainly, someone with Miles’ level of expertise would know how
to distinguish a marijuana plant from a clone. Therefore, it
would have been reasonable for the jury to conclude that if
sixty-three of the marijuana plants had root systems, then the
remaining thirty-seven that Miles told Harrelson he had grown
also had root systems. The district court correctly found that
10
the jury was merely charged with the task of deciding if they
believed Officer Johnakin and Harrelson, not deciding what a
marijuana plant is. Therefore, the instruction was not
necessary.
C.
Finally, we address the issue of the district court’s
forfeiture order. This Court reviews factual findings for clear
error and legal determinations de novo. See United States v.
Leftenant, 341 F.3d 338, 342 (4th Cir. 2003). Because Miles did
not raise the forfeiture issue with the district court, our
review is for plain error. See United States v. Olano, 507 U.S.
725, 732-37 (1993).
Miles argues, “If the Court vacates or reverses Miles’s
convictions, it must also vacate the district court’s forfeiture
order based on those convictions as a ‘necessary consequence.’”
(Pet’r Br. 24. (quoting United States v. Wittig, 525 F. Supp. 2d
1281, 1287 (D. Kan. 2007), rev’d on other grounds).) Because
Miles has not established a reason to reverse or vacate his
convictions, we must evaluate his other arguments in support of
vacating the forfeiture order.
First, Miles argues that the forfeiture order lacks a
sufficient factual basis. See Libretti v. United States, 516
U.S. 29, 44 (1995) (requiring a “factual nexus” between the
amount ordered forfeited and proceeds of crime). To support his
11
argument, Miles emphasizes the evidence in the record that he
sold very little marijuana, and involved outsiders only “if he
had any extra.” (J.A. 76, 117.) Miles argues that when the
Court considers the following facts it must determine that the
forfeiture order was unconstitutional: 1) he was often “dry”
(J.A. 118) or without harvest; 2) there were breaks in his
growing process; 3) Nelson saw Miles sell marijuana only twice
in a year; and 4) Miles smoked a large amount personally.
Additionally, at trial the Government put Sergeant Preuss,
a DEA task force officer, on the stand. Miles challenges
Sergeant Preuss’ suggestion that his marijuana was worth $3,200
per pound ($800 per quarter pound). He argues that there was
evidence at trial that he sold marijuana for $50 per quarter
pound, even though he believed that he could probably get as
much as $120 per quarter pound. Miles contends that the
Government offered no support for its contention that the
marijuana was worth sixteen times what he actually received for
it during his sales.
As counsel for the Government pointed out during oral
argument, one of Miles’ prison-mates, Christian Shoolroy,
testified that in his experience one marijuana plant yielded
one-half of an ounce to an ounce of marijuana. Shoolroy also
testified that Miles stated that he consumed a quarter ounce
every two to four weeks. If we assume Miles produced the low
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end of Shoolroy’s estimate then we can assume that the sixty-
three plants recovered from Miles yielded thirty-one and a half
ounces of marijuana. If we assume that Miles smoked a quarter
ounce of marijuana every week during the three-month growth
season during which the sixty-three plants were produced—even
more than Shoolroy’s highest estimate, which would be Miles’
best support for his theory that the marijuana was for his
personal use and not for sale—then we would find that Miles
smoked about three ounces during the three months. Therefore,
even when we assume Miles smoked more than what is documented in
the record, only about ten percent of his harvest could ever
have conceivably been allocated for personal use. Even though
there was limited evidence of Miles’ drug sales, the district
court correctly discerned from the facts that Miles produced
significantly more marijuana than he could have consumed. These
calculations coupled with evidence of Miles’ prior sales
provided a sufficient factual nexus for the forfeiture order.
Once the jury found that Miles was guilty of manufacturing
one-hundred marijuana plants, the district court relied on the
number one hundred and converted it into grams using the
conversion rate of one-hundred grams per plant found in U.S.S.G.
§ 2D1.1. The district court then relied on the testimony of
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Sergeant Preuss and multiplied $3,200 by 21.9 pounds 2 reaching a
value of $70,080. The district court then decided to attribute
Miles with $20,000, less than thirty percent of the overall
calculated amount. Miles argues that there was no factual nexus
between the forfeiture order and the facts of the record. Given
that there was a sufficient basis to attribute Miles with ninety
percent of the marijuana produced, after subtracting the high
estimate of ten percent for personal use, it appears that the
district court’s forfeiture amount was generous. 3 Miles has not
demonstrated error, let alone plain error. 4
Miles cannot overcome the steep burdens of review
applicable to the claims he asserts. Therefore, the decision of
the district court is affirmed.
AFFIRMED
2
100 plants = 10,000 grams = 22.05 pounds
3
Using Preuss’ rate and attributing Miles with ninety
percent of the marijuana he produced, would have justified a
forfeiture of $63,000.
4
The Government suggests that an excessiveness challenge
can never be mounted against a criminal forfeiture pursuant to
21 U.S.C. § 853(a)(1). This argument has been plainly rejected.
See United States v. Bajakajian, 524 U.S. 321, 338-39 (1998);
United States v. Ahmad, 213 F.3d 805, 814 (4th Cir. 2000).
However, we need not address this issue further because Miles’
arguments are unavailing on other grounds.
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