United States v. Balthazard

United States Court of Appeals
For the First Circuit
No. 03-1338

UNITED STATES OF AMERICA,
Appellee,

v.

STEPHEN J. BALTHAZARD,
Defendant, Appellant.

No. 03-1343
UNITED STATES OF AMERICA,
Appellee,

v.

STEVEN J. SOUVE,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, Senior District Judge]

Before
Lipez, Circuit Judge,
Coffin, Senior Circuit Judge,
and Barbadoro,* District Judge.

John F. Cicilline, for appellants.
Donald C. Lockhart, Assistant United States Attorney, with
whom Craig N. Moore, United States Attorney, and Gerard B.
Sullivan, Assistant United States Attorney, were on brief for the
United States.

March 15, 2004

*
Of the District of New Hampshire, sitting by designation.
 BARBADORO, District Judge. Stephen Balthazard and Steven

Souve were convicted of participating in a conspiracy to

manufacture more than 1,000 marijuana plants. Defendants challenge

their convictions on a host of grounds, the most significant of

which depend upon the premise that the government proved at most

that they were involved in a series of short-lived uncharged

marijuana growing conspiracies rather than the single conspiracy

described in the indictment. Arguing that this premise is

incontestable, they assert that the trial court should have

excluded all evidence of the uncharged conspiracies and granted

their motions for judgment of acquittal. Alternatively, they

contend that the court erred in failing to give their proposed

multiple conspiracy instruction.

We reject defendants’ multiple conspiracy arguments. As

we explain below, the court properly admitted evidence concerning

all of defendants’ marijuana growing operations and appropriately

denied their motions for judgment of acquittal because the

government produced sufficient evidence to permit a finding that

all of the operations were part of the single conspiracy charged in

the indictment. The court also did not err in refusing to give

defendants’ proposed multiple conspiracy instruction because the

proposed instruction was misleading.

Defendants also complain that the trial court made

several erroneous evidentiary rulings, committed misconduct, failed

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to instruct on a lesser included offense, and misapplied the

sentencing guidelines. Because none of these arguments warrant

reversal or remand, we affirm.

I.

On September 12, 2000, law enforcement agents raided a

warehouse located at 29 Okie Street in Providence, Rhode Island.

Inside, they discovered evidence of a massive marijuana growing

operation. The disclosure of the Okie Street operation resulted in

an indictment charging that Balthazard and Souve had conspired with

a third coconspirator, James St. Jacques, to manufacture and

possess with intent to distribute marijuana “[f]rom a time

unknown, but from at least on or about January 1, 1994 up to and

including September 12, 2000.”1 The government contended at trial

that Balthazard and St. Jacques had been partners in the marijuana

business throughout the 1990s and that Souve joined the conspiracy

in 1997 or 1998. The conspirators allegedly grew marijuana

hydroponically at several different locations and processed it

three or four times per year using “bud pickers” who were paid for

their services in marijuana. We describe the evidence supporting

these contentions in the light most favorable to the verdicts

rendered. United States v. Portela, 167 F.3d 687, 692 (1st Cir.

1999).

The government relied on testimony from several bud

1
St. Jacques died prior to trial.

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pickers to describe the early phases of the conspiracy. These

witnesses claimed that they worked initially for Balthazard and St.

Jacques and remained active participants in the conspiracy after

Souve became a member in 1997 or 1998. They described the

respective roles that Balthazard, St. Jacques, and Souve played in

the conspiracy and identified several different locations where the

conspirators grew and processed marijuana.

The government also produced substantial evidence linking

Balthazard, St. Jacques, and Souve to the Okie Street growing

operation. It established that Balthazard rented the warehouse in

his own name from 1993 until September 1998 and that he thereafter

caused the lease to be transferred to a fictitious lessee. An

electrician testified that St. Jacques hired him in 1994 to install

grow lights, wiring, and timers at the warehouse. Several of the

bud pickers and other coconspirators placed St. Jacques,

Balthazard, and Souve at the warehouse while marijuana was being

grown at the site and at St. Jacques’ Rehoboth, Massachusetts home

while marijuana from the Okie Street operation was being processed

there. St. Jacques’ wife testified that she split profits

generated by the marijuana growing business equally among herself,

Balthazard, and Souve after her husband was arrested on unrelated

charges in April 2000. A ledger seized from St. Jacques’ home both

corroborated her testimony on this point and reflected the payment

of additional drug sale proceeds to Balthazard to reimburse him for

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rent on the warehouse. Law enforcement witnesses also testified

that Balthazard’s fingerprints were found on transformer boxes

attached to grow lights inside the warehouse and Souve’s

fingerprint was found on one of the grow light bulbs.

II.

Defendants’ three main arguments depend upon their

contention that what the indictment charged as a single conspiracy

was at most a series of distinct marijuana growing operations.

Arguing that only the Okie Street operation had any connection to

the charged conspiracy, defendants first claim that the trial court

erred in failing to exclude all evidence of the earlier marijuana

growing operations. In the same vein, they next argue that the

court should have granted their motions for judgment of acquittal

because the government failed to prove that they were members of

the overarching conspiracy described in the indictment. Finally,

they fault the trial court for failing to give their proposed

multiple conspiracy instruction. We examine each argument in turn.

A. Admissibility - Evidence of Other Marijuana
Growing Operations

Balthazard and Souve first claim that the court should

have excluded all evidence that implicated them in marijuana

growing operations other than Okie Street. Their theory is that

the challenged evidence was irrelevant and unfairly prejudicial

because the government failed to connect the operations to the

conspiracy described in the indictment. This is primarily an

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argument about conditional relevancy that we evaluate under Fed. R.

Evid. 104(b). When the relevancy of evidence is conditioned on the

establishment of a fact - in this case, that the other marijuana

growing operations were undertaken in furtherance of the charged

conspiracy - the offering party need only introduce sufficient

evidence to permit a reasonable jury to find the conditional fact

by a preponderance of the evidence to establish that the evidence

is relevant. Huddleston v. United States, 485 U.S. 681, 689-90

(1988). Even relevant evidence should be excluded, however, if its

probative value is substantially outweighed by the danger of unfair

prejudice and the prejudicial effect cannot be addressed by a

limiting instruction. See Fed. R. Evid. 403. This concern is

particularly acute when the challenged evidence implicates a

defendant in uncharged criminal activity because if such evidence

is admitted improperly, there is a real danger that it could be

misused. Accordingly, even if the challenged evidence is

conditionally relevant under Rule 104(b), we must also consider

defendants’ contention that the evidence nevertheless should have

been excluded under Rule 403.2

Viewing the record in this light, the trial court’s

2
Defendants also make passing reference to Fed. R. Evid.
404(b), but that rule deals with the use of unrelated bad acts to
prove a propensity for criminal conduct. It does not come into
play at all in a case such as this, where we determine that the
evidence is conditionally relevant under Rule 104(b). See United
States v. Villarman-Oviedo, 325 F.3d 1, 11 (1st Cir. 2003).

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decision to admit the challenged evidence is unassailable. Several

witnesses testified that Balthazard and St. Jacques worked together

throughout the 1990s to grow, process, and sell marijuana and that

Souve joined the conspiracy in 1997 or 1998. The conspirators used

the same core group of bud pickers to assist them in their

operations throughout this period and the conspirators’ goals and

methods remained the same while the conspiracy was in existence.

For these reasons, and because all of the challenged operations

fell within the temporal limits of the charged conspiracy, we find

little support for defendants’ contention.

Balthazard and Souve nevertheless argue that the prior

marijuana growing operations could not have been a part of the

charged conspiracy both because the conspirators grew and processed

the marijuana at different sites and because the prior operations

were completed before Souve joined the conspiracy. Neither

argument has merit. A single conspiracy does not fracture into

multiple conspiracies merely because the conspirators shift the

locations at which they conduct their operations. See United

States v. Walker, 142 F.3d 103, 112 (2d Cir. 1998); see also United

States v. Brandon, 17 F.3d 409, 451 (1st Cir. 1994). Nor does one

conspiracy necessarily end and a new one begin each time a new

member joins the organization. See United States v. Bello-Perez,

977 F.2d 664, 668 (1st Cir. 1992). Given the abundant evidence to

support the government’s single conspiracy theory, the changes in

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the conspiracy that the defendants seek to highlight do not come

close to raising a legitimate challenge under either Rule 104(b) or

Rule 403.3

B. Sufficiency - Evidence of a Charged Conspiracy

Balthazard and Souve next argue that the court erred in

denying their motions for judgment of acquittal because the

evidence proved only that they participated in multiple uncharged

marijuana growing conspiracies rather than the overarching

conspiracy described in the indictment. In assessing what is

essentially a claim that the evidence varied materially from the

crime charged in the indictment, “we ‘canvass the evidence (direct

and circumstantial) in the light most agreeable to the prosecution

and decide whether that evidence, including all plausible

3
Balthazard and Souve also argue that the court should have
barred any reference to the other marijuana growing operations
because the government conceded in its opening statement that only
the Okie Street operation had any connection to the charged
conspiracy. We reject this characterization of the government’s
opening statement. While the government did assert that “[a]s a
practical matter, the only location that matters, during the period
of limitations, is Okie Street,” it made this statement in an
effort to inform the jury that the defendants could not be found
guilty unless the evidence demonstrated that the conspiracy
continued beyond the bar date imposed by the statute of
limitations. At no time did the government suggest that the prior
operations were the product of separate conspiracies. Instead, it
correctly informed the jury that any evidence of growing operations
that predated the statute of limitations’ bar date remained
relevant but was not by itself sufficient to support the
defendants’ convictions. See United States v. Seuss, 474 F.2d 385,
391 (1st Cir. 1973) (explaining that pre-statute of limitations
evidence is admissible to prove the existence of a conspiracy that
overlaps the bar date imposed by the statute of limitations).

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inferences extractable therefrom, enables a rational factfinder to

conclude beyond a reasonable doubt that the defendant committed the

charged crime.’” United States v. Perez-Ruiz, 353 F.3d 1, 5 (1st

Cir. 2003) (quoting United States v. Noah, 130 F.3d 490, 494 (1st

Cir. 1997)). We consider all relevant circumstances in making this

determination and pay particular attention to factors such as

whether the alleged conspirators shared a common purpose, whether

their actions demonstrated interdependency, and the extent to which

participants overlapped during the life of the alleged conspiracy.

See id. At the end of the day, a defendant cannot succeed with a

sufficiency challenge “as long as a plausible reading of the record

supports the jury’s implied finding that he knowingly participated

in the charged conspiracy.” Id.

The same evidence that justifies the trial court’s

decision to admit the evidence of other marijuana growing

operations is more than sufficient to also permit a jury to

conclude beyond a reasonable doubt that all of the operations were

undertaken in furtherance of the charged conspiracy. More

fundamentally, defendants could not prevail even if this were not

the case. While the government was free to argue that all of the

operations were part of the charged conspiracy, it was not required

to prove this contention to establish defendants’ guilt. A

multiple conspiracy claim undermines a conspiracy prosecution only

when it creates doubt about whether the defendant is guilty of the

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charged conspiracy. In this case, the evidence of the Okie Street

operation was sufficient by itself to prove that defendants were

guilty of the multiple year conspiracy to manufacture more than

1,000 marijuana plants that was described in the indictment. This

is because the evidence demonstrated that Balthazard, St. Jacques,

and later Souve, used the Okie Street site to grow thousands of

marijuana plants from at least 1994 until the conspiracy was broken

up in September 2000. Evidence showing that the conspirators also

grew marijuana at several other sites, while qualifying as

additional evidence of the conspiracy, was by no means essential to

the government’s case. Thus, the trial court was justified in

denying defendants’ motions for judgment of acquittal regardless of

whether the evidence was sufficient to prove beyond a reasonable

doubt that the other marijuana growing operations were undertaken

in furtherance of the charged conspiracy.

C. Jury Instruction - Multiple Conspiracy Defense

Defendants’ argument that the trial court erred in

failing to give their proposed multiple conspiracy instruction at

least in theory has a better chance of success than their two

previous arguments because it is governed by a more favorable

standard of review. A multiple conspiracy claim ordinarily

presents a question of fact for the jury to resolve. See United

States v. LiCausi, 167 F.3d 36, 45 (1st Cir. 1999). Thus, a court

should instruct on the issue “if, ‘on the evidence adduced at

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trial, a reasonable jury could find more than one such illicit

agreement, or could find an agreement different from the one

charged.’” United States v. Brandon, 17 F.3d 409, 449 (1st Cir.

1994) (quoting United States v. Boylan, 898 F.2d 230, 243 (1st Cir.

1990)). A court need not give a proposed jury charge, however, if

it is incorrect, incomplete, or misleading. See United States v.

Lara, 181 F.3d 183, 196 (1st Cir. 1999). This is the case here.

The trial court correctly instructed the jury that the

defendants could not be found guilty unless the government proved

beyond a reasonable doubt “that the agreement or conspiracy

specified in the indictment, and not some other agreement, or

agreements existed, between at least two people to manufacture,

possess, or distribute 1,000 or more marijuana plants.” The

proposed instruction elaborates on this basic point by stating

“[t]he question of whether there is a single conspiracy or multiple

conspiracies is one of fact for the jury.” It then lists several

factors that the jury could consider in determining whether the

evidence supported the defendants’ multiple conspiracy defense.

While the factors listed in the instruction are all drawn from our

prior decisions, the instruction adds little to the court’s

instruction and, in any event, it is misleading because it fails to

explain what jurors should do if the evidence suggests that some of

the marijuana growing operations were the result of separate

conspiracies. As a result, the proposed instruction leaves the

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misimpression that jurors should acquit if they have a reasonable

doubt about whether any of the defendants’ marijuana growing

operations were the product of separate conspiracies. As we have

explained, multiple conspiracy is not a defense unless it creates

a reasonable doubt about whether the defendant is guilty of the

charged conspiracy. The government did not need to prove that all

of the marijuana growing operations were undertaken in furtherance

of the charged conspiracy in order to establish the defendants’

guilt as long as they were able to demonstrate that the defendants

were guilty of the charged conspiracy. Because the proposed

instruction suggests otherwise, it is misleading and the court was

under no obligation to give it.

III.

Defendants argue that the trial court made a number of

erroneous evidentiary rulings, committed misconduct, failed to

instruct on a lesser included offense, and misapplied the

sentencing guidelines. We briefly address each of the defendants’

arguments.

A. Evidentiary Issues

1. Rule 404(b) - Other Crimes Evidence

Fed R. Evid. 404(b) provides that “[e]vidence of other

crimes, wrongs or acts is not admissible to prove the character of

a person in order to show action in conformity therewith.”

Defendants point to several instances in which they claim that the

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trial court admitted evidence in violation of this rule.

a. Other Marijuana Sales

John Elliot, one of the bud pickers, testified that he

had known Balthazard since the late 1980s and had worked for the

conspirators from 1990 until the summer of 2000. Over Balthazard’s

objection, Elliot answered “yes” to the prosecutor’s question

“[h]ave you ever received marijuana from Mr. Balthazard?”

Balthazard argues that the court should have sustained his

objection because the prosecutor failed to establish that Elliot

had received the marijuana from Balthazard while the conspiracy was

in existence.

While it is true that the jury could not determine from

the prosecutor’s question and Elliot’s answer precisely when Elliot

received marijuana from Balthazard, Elliot’s testimony nevertheless

was admissible as evidence of the “‘background, formation, and

development of the illegal relationship’” between them even if

Elliot was not a member of the conspiracy when he received the

marijuana. United States v. Scott, 270 F.3d 30, 47 (1st Cir. 2001)

(quoting United States v. Karoudakis, 233 F.3d 113, 118 (1st Cir.

2000)). The court’s ruling on the issue thus was correct.

b. Prior Theft of Electricity Conviction

The prosecutor referred during his redirect examination

of Special Agent Kleber to the fact that Kleber was aware of

“Pawtucket Police reports concerning theft of electricity in the

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early nineties.” Balthazard claims that this was an improper

reference to his prior nolo contendere plea to a charge of theft of

electricity.

We reject Balthazard’s argument because we agree with the

district court that he “opened the door” to questioning about the

report. During cross examination, Balthazard’s counsel suggested

to Special Agent Kleber that the only investigative report that

linked Balthazard to unrelated criminal activity was a report that

concerned stolen auto parts. By seeking to create an impression in

the minds of jurors that Balthazard had had only limited prior

contacts with law enforcement, Balthazard’s counsel opened the door

to questioning about additional reports that linked Balthazard to

other criminal activity. The trial court thus did not act

inappropriately in allowing the government to follow up on an issue

that Balthazard himself had raised. See, e.g., United States v.

Sotomayer-Vazquez, 249 F.3d 1, 12 (1st Cir. 2001) (defendant opened

the door to cross examination concerning Rule 404(b) evidence by

testifying about the subject on direct).

c. False Tax Return

The government established that Balthazard purchased and

made $58,000 in payments on a 37-foot custom-designed motor boat in

1998 while reporting limited income on his tax returns for the

years leading up to the purchase. Balthazard’s accountant also

testified that he prepared a false tax return for Balthazard that

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he used to obtain a loan for the boat purchase. Balthazard argues

that the trial court should have excluded evidence of the false tax

return.

The false return had no connection to Balthazard’s drug

dealing and it added nothing to the government’s attempt to show

that Balthazard had earnings that exceeded his legitimate income.

Because the government has not identified any other reason why the

false tax return evidence was relevant, we agree that the court

should have excluded the false return.

The government nevertheless argues that the admission of

the false tax return evidence was harmless. When the government

makes such a claim, it must demonstrate that it is “highly

probable” that the court’s erroneous ruling played no role in the

conviction. See United States v. Meserve, 271 F.3d 314, 329 (1st

Cir. 2001). While there is always some risk that a jury could be

prejudiced by hearing evidence that a defendant has engaged in

uncharged misconduct, the evidence of Balthazard’s guilt is so

strong that evidence suggesting that he also was involved in

another unrelated and less serious criminal scheme was

inconsequential. Accordingly, we reject Balthazard’s claim because

the court’s error in refusing to exclude the false tax return

evidence was harmless.

2. Rule 612 - Refreshing Recollection

The government filed a downward departure motion on

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behalf of Christine St. Jacques that stated “though [St. Jacques]

was not personally involved in the [Okie Street growing] operation,

she was able to take investigators to a commercial structure

located in the City of Providence used as a large scale indoor

grow.” Defendants wanted the jury to hear this statement because

they believed that it would undercut St. Jacques’ claim at trial

that she had split the profits generated by the Okie Street

operation with Balthazard and Souve while her husband was in

prison. Defendants attempted to accomplish this objective by

confronting FBI Special Agent Russell Kleber with the motion on

cross examination and attempting to use it to refresh his

recollection. The trial court blocked the attempt and defendants

argue that the court erred.

It is hornbook law that a party may not use a document to

refresh a witness’s recollection unless the witness exhibits a

failure of memory. See N.L.R.B. v. Fed. Dairy Co., 297 F.2d 487,

488-89 (1st Cir. 1962); 4 Jack B. Weinstein & Margaret A. Berger,

Weinstein’s Federal Evidence § 612.03[2][a] (Joseph M. McLaughlin

ed., 4th ed. 2003). While Special Agent Kleber refused to accept

counsel’s contention that St. Jacques had no knowledge of the Okie

Street operation, he did not claim that his memory on the point was

impaired. Thus, the trial court correctly rejected defendants’

attempt to use the downward departure motion to refresh Special

Agent Kleber’s recollection.

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 3. Rule 801(c) - Hearsay

Law enforcement officials discovered two notes when they

searched the Okie Street warehouse. The first, addressed to “Steve

S,” specified different “PPMs” (parts per million) of a certain

additive that were to be used for “Little guys,” “Med guys,” and

“Big guys”; reminded the intended recipient to “spray”; and

instructed him to “get Bob F to wire up and help you set up.” The

second note included the phrase “when SJ’s back” and instructed the

intended recipient to “clean tanks,” “spray” and “rap [sic] water

pipes.” Defendants argue that the trial court should have excluded

the notes because they contained inadmissible hearsay.

The short answer to this argument is that the defendants

are simply wrong. The notes do not contain any hearsay statements.

Instead, they are instructions from one participant in the

conspiracy to another concerning the care and feeding of marijuana

plants. Documents of this sort are obviously relevant regardless

of whether the instructions they contain were ever followed. See,

e.g., United States v. Alosa, 14 F.3d 693, 696 (1st Cir. 1994)

(“[I]f records manifestly are or are shown by other evidence to be

drug records, they are admissible ‘real evidence’ tending to make

it more likely that a drug business was being conducted.”).

4. Rules 701 and 702 - Opinion Testimony

Balthazard argues that the trial court impermissibly

permitted Special Agent Kleber to express his opinion that one of

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the notes that agents found at the Okie Street warehouse had been

left there between 1994 and 1998. Special Agent Kleber based his

opinion on the fact that the note referred to an electrician named

“Bob F” and Kleber knew that an electrician named Bob Foster had

been hired to do work at the Okie Street warehouse on more than one

occasion between 1994 and 1998. While the court arguably should

have sustained Balthazard’s objection to this opinion evidence

because it does not appear to qualify as either admissible expert

or lay opinion testimony, the challenged evidence could not have

affected the verdicts. Special Agent Kleber’s opinion was an

obvious and appropriate deduction from evidence that was before the

jury. The jury plainly would have drawn the same conclusion

without his help. In any event, the note was only one small piece

of a mountain of evidence that proved Balthazard’s guilt of the

alleged conspiracy. Any error that the trial court made in

allowing the opinion testimony was harmless.

B. Judicial Misconduct

Scott Blais, another bud picker, testified that

Balthazard was “fading out” of the marijuana processing part of the

conspiracy in 1998. On redirect, Blais explained this comment by

stating that Balthazard’s “appearance was just less and less as to

the marijuana aspect of the processing.” In an apparent effort to

emphasize this point, the prosecutor asked Blais “[y]ou saw

[Balthazard] less frequently in ‘98?” Balthazard’s counsel

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immediately objected and stated “[t]hat wasn’t his testimony. He

said I didn’t see him.” The district court responded by stating

“[o]verruled. That was his testimony.” The following colloquy

ensued:

MR. CICILLINE: Please note my objection to
that, as well.
THE COURT: You don’t have to state that. When
you rise and make an objection and I rule on
it, that’s it. I don’t want to hear anymore
argument from you.
MR. CICILLINE: Judge, I’m objecting to the
manner in which you answer me.
THE COURT: Sit down. Sit down. I don’t like
the way you’re acting.
MR. CICILLINE: I object to that, as well.
THE COURT: All right, you can object to that,
if you wish. But I will tell you right now,
that when I make a ruling, I don’t want to
hear any further arguments from you. Go
ahead.

Balthazard claims that the court misstated Blais’s testimony and

improperly rebuked his counsel in front of the jury. Neither

argument has merit.

We are satisfied after reviewing the record that it was

Balthazard’s counsel rather than the court who mischaracterized

Blais’s testimony. Thus, the court did not err in overruling the

objection. Nor did the court act improperly by instructing

Balthazard’s counsel that he should refrain from commenting on the

court’s evidentiary rulings. See United States v. Gomes, 177 F.3d

76, 79-80 (1st Cir. 1999). While it is generally preferable to

deliver such instructions outside the presence of the jury, we

allow trial judges substantial discretion in determining how best

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to ensure that attorneys behave appropriately in court. Id. In

this case, the court’s admonishment was both warranted and

relatively mild. Under the circumstances, the court did not abuse

its discretion by making its comments in the presence of the jury.

C. Failure to Instruct on a Lesser Included Offense

The maximum sentence that may be imposed for conspiracy

to manufacture and possess with intent to distribute marijuana

depends upon the amount of marijuana that is attributed to the

conspiracy. If a conspiracy involves at least 1,000 kilograms of

marijuana or an equivalent number of marijuana plants, the maximum

sentence is life. See 21 U.S.C. § 841(b)(1)(A). If the conspiracy

involves at least 100 but less than 1,000 kilograms of marijuana or

an equivalent number of marijuana plants, the maximum sentence is

40 years. See 21 U.S.C. § 841(b)(1)(B). The maximum sentence is

20 years if the conspiracy involves at least 50 but less than 100

kilograms of marijuana or an equivalent number of marijuana plants.

See 21 U.S.C. § 841(b)(1)(C)-(D). Lesser amounts are punishable by

a sentence of up to five years. See 21 U.S.C. § 841(b)(1)(D).

The trial court treated § 841(b)(1)(B) (at least 100 but

fewer than 1,000 marijuana plants) as a lesser included offense of

§ 841(B)(1)(A) (1,000 or more marijuana plants).4 It thus gave the

4
The defendants and the government both accept the trial
court’s characterization of §§ 841(b)(1)(B)-(D) as lesser included
offenses of § 841(b)(1)(A). Our recent decision in United States
v. Goodine, 326 F.3d 26 (1st Cir. 2003), at least potentially calls
the court’s conclusion on this point into question because we held

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jury the option to convict the defendants of the version of the

offense that carries a 40-year maximum sentence. The court,

however, refused defendants’ request to also instruct on §

841(b)(1)(D) (fewer than 50 marijuana plants). The matter is

potentially relevant because defendants’ sentences exceeded the

five-year maximum that they would have been exposed to if they had

been found guilty of conspiracy under § 841(b)(1)(D).

It is difficult to see how on the present record the jury

could have found the defendants guilty of a conspiracy to

manufacture fewer than 50 marijuana plants. But we need not

speculate on this point because the verdicts that the jury actually

returned eliminate any possibility that the failure to instruct on

§ 841(b)(1)(D) could have affected its thinking.

One of the principal reasons why a defendant is entitled

to a lesser included offense instruction when the evidence supports

it is that such an instruction “protects a defendant from a

conviction in situations where a jury, although dubious about

whether the prosecution has proved an indispensable element of the

crime charged in the indictment, nevertheless considers the

in that case that drug quantity is a sentencing factor rather than
an element, id. at 32-33, and we have traditionally decided whether
one offense is a lesser included offense of another by asking
whether “the elements of the lesser offense are a subset of the
elements of the charged offense.” See Schmuck v. United States,
489 U.S. 705, 715-16 (1989). We need not delve into this issue.
As we shall explain, even if a lesser included offense instruction
were appropriate, the record here shows that no error occurred.

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defendant to be guilty of some crime -- and is, therefore,

reluctant to acquit.” United States v. Flores, 968 F.2d 1366, 1369

(1st Cir. 1992). A lesser included offense instruction minimizes

this risk by giving jurors a “third option” when neither an

acquittal nor a conviction on the charged offense fits the facts of

the case. Schad v. Arizona, 501 U.S. 624, 646 (1991).

We have no reason to fear in this case that the jury

improperly convicted the defendants of the charged conspiracy for

lack of a less serious option because the court gave the jury the

chance to convict on a charge of conspiracy to manufacture fewer

than 1,000 marijuana plants. If jurors had felt compelled to find

the defendants guilty of something even though they had a

reasonable doubt about the drug quantity charged in the indictment,

they logically would have found the defendants guilty of the lesser

offense. Because they instead convicted on the more serious

offense, the issue is a moot point. See id. (first degree murder

conviction was not called into question by court’s failure to

instruct on lesser included robbery charge because jury considered

and rejected option to convict on second degree murder).

D. Sentencing - Drug Quantity Determination

The probation office prepared presentence reports for

both Balthazard and Souve that proposed to hold them each

responsible for 9,295 marijuana plants. The proposed findings were

based on evidence that agents had seized 56 developed plants, 3,616

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seedlings, and 5,623 stems or stumps of dead or harvested plants

from the Okie Street warehouse when they raided it in September

2000. Using the 1-plant-to-1-kilogram conversion ratio specified

in U.S.S.G. § 2D1.1(c)(5), the probation office determined that

each defendant was responsible for 929.5 kilograms of marijuana.

Souve did not challenge the probation officer’s proposed

drug quantity determination, but Balthazard argued that the

proposed determination was excessive because it improperly counted

each of the more than 5,000 stems or stumps found at the scene as

a single plant when, as Balthazard’s counsel claimed, “as a matter

of physics, a single stump or a single root formation could have

several stems.” The trial court disposed of this argument by

stating “the evidence is overwhelming that on the day the

government moved in, there were remnants of more than 9,000 plants

in the premise. That is not even considering the other relevant

conduct in other groves [sic].” Both defendants press Balthazard’s

sentencing argument on appeal.

When a defendant challenges a proposed drug quantity

determination at sentencing, the government must prove that the

determination is warranted by a preponderance of the evidence.

United States v. Burke, 999 F.2d 596, 601 (1st Cir. 1993). Once

the sentencing court has resolved the issue, however, its

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determination stands unless it is clearly erroneous.5 United

States v. Sanchez, 354 F.3d 70, 74 (1st Cir. 2004).

Neither Balthazard nor Souve presented any evidence to

support their position that a single marijuana plant will often

have more than one stem. Moreover, the only circuit court that

has addressed the issue has concluded on the basis of a far more

complete evidentiary record that “[e]ach stalk protruding from the

ground and supported by its own root system should be considered

one plant, no matter how close to other plants it is and no matter

how intertwined are their root systems.” United States v.

Robinson, 35 F.3d 442, 447-48 (8th Cir. 1994). Because defendants

failed to present any evidence to support their contrary argument,

we are in no position to say that the sentencing court’s findings

on the point are clearly erroneous.6

IV.

5
Because Souve did not raise his challenge in the district
court, we review his claim for plain error. See United States v.
Phanuef, 91 F.3d 255, 262 (1st Cir. 1996).
6
Defendants also argue that the sentencing court improperly
imposed a four-level increase in each of their base offense levels
pursuant to U.S.S.G. § 3B1.1 because the court found that they were
organizers or leaders of a criminal activity that “involved five or
more participants or was otherwise extensive.” We summarily reject
this argument because the record contains ample evidence to justify
the sentencing court’s conclusion that both defendants led an
extensive drug manufacturing and distribution conspiracy that
involved as many as nine different bud pickers and other
conspirators.

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 Defendants have no basis to complain of their treatment

in district court. The evidence against them was overwhelming, the

trial was fairly conducted, and their sentences were lawful. The

judgments below are affirmed.

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