United States v. Montgomery

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
November 14, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellant,
No. 05-3263
v.

D A N IEL M O N TG O ME RY ,

Defendant - Appellee.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF KANSAS
(D .C . No. 03-CR-20127-KHV)

Daniel S. Goodman, Criminal Division, Appellate Section, U.S. Department of
Justice, W ashington, D.C., (Eric F. M elgren, United States Attorney, and Sheri P.
M cCracken, Assistant United States A ttorney, District of Kansas, on the briefs),
for Plaintiff - Appellant.

W illiam F. Cummings, Cummings & Cummings, L.L.C., W ichita, Kansas, for
Defendant - Appellee.

Before KELLY, A ND ER SO N, and BEAM , * Circuit Judges.

KELLY, Circuit Judge.

*
The H onorable C. Arlen Beam, Senior Circuit Judge, United States Court
of Appeals for the Eighth Circuit, sitting by designation.
 The government appeals from the district court’s judgment granting

Defendant-Appellee Daniel M ontgomery’s motion for judgment of acquittal and

vacating the jury’s verdict based on insufficiency of the evidence. The

government also contests the district court’s alternative holding that M r.

M ontgomery is entitled to a new trial. The government urges this court to reverse

and reinstate the jury’s verdict of guilty, directing the district court to sentence

M ontgomery under 21 U.S.C. § 841(b)(1)(B)(vii). In the alternative, the

government argues that if we affirm the district court’s judgment of acquittal, the

district court should be instructed to enter judgment of conviction under 21

U.S.C. § 841(a)(1) and the lesser-included offense in 21 U.S.C. § 841(b)(1)(C).

Our jurisdiction arises under 18 U.S.C. § 3731. W e reverse, reinstate the verdict,

and remand for sentencing.

Background

M r. M ontgomery rented space in a friend’s home located at 1616 South

15th Street, in Kansas City, Kansas. In the house, M r. M ontgomery maintained a

m arijuana grow ing operation. A gents from the Drug Enforcement Agency (DEA )

observed M r. M ontgomery purchasing a large amount of merchandise from a

hydroponics 2 store. The DEA agents then obtained an administrative subpoena

2
“Hydroponics” refers to the “growing of plants in nutrient solutions w ith
or w ithout an inert medium to provide mechanical support.” W ebster’s Ninth
(continued...)

2
and learned that the house at 1616 South 15th Street had a much higher rate of

electric use than comparable houses in the same neighborhood. After the agents

recovered marijuana from a trash can located at the house, they obtained a search

warrant.

W hen executing the warrant, DEA agents uncovered a large marijuana

growing operation. M ost of the marijuana plants were located in a large “grow

room,” but a smaller room contained two “mother plants” and “clones.” A

“mother plant” is a mature marijuana plant used to produce clippings that are put

in a fertilized solution in the hope that they will subsequently sprout roots and

become new marijuana plants.

The DEA agents counted 101 marijuana plants with fully developed root

systems, stems, and leaves. A random sample of ten plants confirmed that the

plants were in fact marijuana. Based on the sheer volume of marijuana contained

in the house, the agents believed that the marijuana was not solely for personal

use.

M r. M ontgomery was indicted on one count of possession with intent to

distribute, 100 or more marijuana plants. 21 U.S.C. § 841(a)(1), (b)(1)(B) & 18

U.S.C. § 2. Aplt. App. at 9-10. At trial, the government called six w itnesses,

including three DEA agents, a forensic chemist, a utility company employee, and

2
(...continued)
Collegiate Dictionary 590 (9th ed. 1991).

3
the owner of the house at 1616 South 15th Street. Aplt. Br. at 7. M r.

M ontgomery rested without calling any witnesses. Instead, M r. M ontgomery

moved for a directed verdict of acquittal based on “no expert testimony in this

case that the defendant possessed a hundred or more marijuana plants.” Aplt.

App. at 85. The district court denied the motion, ruling that ample evidence

established that the plants were marijuana. Id. at 88-89.

At the jury instruction conference, the parties and court agreed on the

language of Instruction 15, which read, in pertinent part:

In order to prove that defendant is guilty of the crime charged in the
indictment, the government must prove beyond a reasonable doubt the
follow ing three essential elements:

FIRST: On or about M ay 5, 2003, in the District of Kansas, defendant
possessed 100 or more marijuana plants, a controlled
substance;

SECOND: Defendant knew that the substance was marijuana, a controlled
substance; and

THIRD: Defendant intended to distribute the controlled substance.

Id. at 51, 91-92.

In a subsequent instruction, the district court defined the term “distribute”

as “to deliver or to transfer possession or control of something from one person to

another.” Id. at 52.

In his closing argument, M r. M ontgomery’s counsel stated:

Danny M ontgomery grew marijuana. There is no question about that.
The issues in this case are . . . . Did the government prove to you

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 beyond a reasonable doubt that he did so with an intent to distribute
it? A nd secondly, did they prove to you beyond a reasonable doubt
that it was a hundred plants or more

Id. at 359. M r. M ontgomery’s counsel did not argue that M r. M ontgomery was

required to possess 100 or more plants with the intent to distribute from each and

every one. See id. at 359-74. The jury subsequently returned a verdict of guilty.

On February 2, 2005, fourteen days after the verdict, M r. M ontgomery filed

a motion for judgment of acquittal contending that there was insufficient evidence

to support the jury’s quantity determination. Id. at 58. Essentially, M r.

M ontgomery argued that the government had only performed chemical testing on

ten plants and thus had failed to prove that all 101 plants were actually marijuana.

The government responded by arguing that the DEA agents’ testimony proved

that all the plants were marijuana and that there was no evidence to the contrary.

Id. at 61.

On M arch 21, 2005, the district court issued a show cause order stating:

Construed in the light most favorable to the government, the
evidence at trial established that defendant possessed 101 marijuana
plants. The evidence, however, did not suggest that defendant
intended to distribute marijuana from all 101 plants. The
government presented evidence that defendant kept some of the
plants in a smaller room for purposes of cloning.

Id. at 69. The district court suggested it erred in giving Instruction 15 because

“[i]t did not require the jury to find that defendant intended to distribute the

controlled substance from 100 or more plants.” Id. at 70. M oreover, according to

5
the court, “it should have instructed the jury that it could not consider plants

which defendant held for purposes other than distribution, i.e. for cloning or for

personal consumption.” Id. The court had previously observed that “[t]he

evidence suggests that defendant possessed at least two mother plants and that as

to these plants, defendant only intended to clone additional marijuana plants from

them.” Id. at 69-70.

In granting the motion for judgment of acquittal, the district court stated:

The government presented no evidence that defendant intended to
harvest or distribute marijuana from any part of the mother plants.
The evidence is therefore insufficient to support a finding that
defendant possessed the mother plants w ith intent to distribute
marijuana from them. Therefore, at most, defendant possessed 99
marijuana plants with intent to distribute, and he is entitled to a
judgment of acquittal.

Id. at 217 (footnote omitted). It also concluded that Instruction 15 was given in

error because (1) it did not require the jury to find that M r. M ontgomery intended

to distribute marijuana from 100 or more marijuana plants, and (2) because it

allowed the jury to consider plants held for purposes other than distribution in the

total plant count. Accordingly, the district court determined in the alternative,

that M r. M ontgomery was entitled to a new trial under Fed. R. Crim. P. 33. Id. at

217-18.

6
 Discussion

W e review de novo the grant of a motion for judgment of acquittal. United

States v. Vallejos, 421 F.3d 1119, 1122 (10th Cir. 2005). W e review the record

“and ask only whether, taking the evidence–both direct and circumstantial,

together with the reasonable inferences to be drawn therefrom–in the light most

favorable to the government, a reasonable jury could find defendant guilty beyond

a reasonable doubt.” U nited States v. Scull, 321 F.3d 1270, 1282 (10th Cir.

2003). W hile w e do require that substantial evidence support the conviction, “it

need not conclusively exclude every other reasonable hypothesis and it need not

negate all possibilities except guilt.” Vallejos, 421 F.3d at 1122.

I. The Q uantity of M arijuana Plants Involved in the O ffense

M r. M ontgomery was charged with violating 21 U.S.C. § 841(a)(1) and

§ 841(b)(1)(B). Section 841(a)(1) proscribes possession with intent to distribute a

controlled substance and § 841(b)(1)(B)(vii) is a complementary provision that

provides the penalty for a violation of § 841(a)(1) involving 100 or more

marijuana plants, regardless of weight. To sustain a conviction for possession

with intent to distribute, the government must prove beyond a reasonable doubt

that a defendant: “(1) possessed the controlled substance; (2) knew he possessed

the controlled substance; and (3) intended to distribute or dispense the controlled

substance.” United States v. M cKissick, 204 F.3d 1282, 1291 (10th Cir. 2000).

Furthermore, when, as in this case, the government elects to charge a defendant

7
with possessing with intent to distribute a certain quantity of drugs, that quantity

of drugs becomes an element of the charged offense if the quantity triggers a

sentence beyond the maximum allowed for violation of the base § 841(a)(1)

offense. United States v. Jones, 235 F.3d 1231, 1236 (10th Cir. 2000).

Possession of the substance can be actual or constructive. M cKissick, 204 F.3d at

1291. In addition, a “jury may infer intent to distribute from the possession of

large quantities of drugs.” United States v. Pulido-Jacobo, 377 F.3d 1124, 1131

(10th Cir. 2004).

As noted, the district court determined that for M r. M ontgomery to be

convicted under § 841(b)(1)(B)(vii), the government had to prove that he intended

to distribute from each of 100 or more marijuana plants. The district court’s

interpretation is not supported by the plain language of the statute; hence, the

district court evaluated the evidence using an incorrect legal standard and came to

an incorrect result.

Section 841(a)(1) provides that “it shall be unlawful for any person

knowingly or intentionally to . . . possess with intent to . . . distribute . . . a

controlled substance . . . .” Section 841(b)(1)(B)(vii) provides for a specific

penalty given a violation of § 841(a)(1) “involving . . . 100 or more marijuana

plants regardless of w eight.” The statute itself does not define the w ord

“involving.” H owever, the root word “involve” means “to have w ithin or as part

8
of itself.” W ebster’s Ninth Collegiate Dictionary 637 (9th ed. 1991). 3 W ebster’s

lists the words “include” and “entail” as relevant synonyms for this meaning of

“involve.” Id. Similarly, the American Heritage Dictionary defines “involve” as

“[t]o contain as a part; include.” A merican Heritage D ictionary (4th ed. 2000).

“Involves” or “involving” are merely inflected forms of the word “involve” and

do not vary from the root in core meaning. Given these definitions, and the

comm on meaning attached to the word involve, the penalties of

§ 841(b)(1)(B)(vii) are triggered when the predicate violation of § 841(a)(1), has

as a part or includes, 100 or more marijuana plants.

In reaching its interpretation that a defendant must intend to distribute from

each of the plants comprising the 100 plant minimum, the district court relied on

United States v. Asch, 207 F.3d 1238 (10th Cir. 2000), and United States v.

Rodriguez-Sanchez, 23 F.3d 1488 (9th Cir. 1994). In Asch, we held that

methamphetamine kept for personal use should be excluded from the base amount

calculation under § 841(b)(1). 207 F.3d at 1246. W e held that “drug quantities

collateral to the underlying § 841(a) violation are not relevant to determinations

of the statutory sentencing range pursuant to § 841(b).” Id. at 1245. In

3
The Supreme Court has often turned to dictionary definitions to discern
the plain meaning of a word. See, e.g., M ississippi v. Louisiana, 506 U.S. 73, 78
(1992) (using Webster’s D ictionary to define the word “exclusive”). W hile we
recognize a dictionary definition is not always sufficient to determine a statute’s
plain meaning, we think the definitions of “involve” cited herein capture the
comm on usage of the word and relate logically to the statute’s other language.

9
Rodriquez-Sanchez, the Ninth Circuit held that only methamphetamine intended

for distribution, not that held for personal use, could be added to the base amount

under § 841(b)(1). 23 F.3d at 1491, 1496.

These cases do not suggest that a defendant must intend to distribute

marijuana from each plant comprising the 100 plant minimum. Both Asch and

Rodriguez-Sanchez involved a finite amount of processed narcotics. Finite

quantities of processed narcotics kept for personal use are not a part of the

underlying offense of possession with intent to distribute. In other w ords, a

person possessing processed narcotics both for distribution purposes and for

personal use is free to sell the distribution quantity regardless of the amount that

he keeps for personal use. The holdings in Asch and Rodriguez-Sanchez are fully

compatible with our definition of the word “involving” because processed

narcotics kept for personal use are not a part of the underlying § 841(a)(1)

offense. It is also worth noting that, unlike in A sch and Rodriguez-Sanchez, there

is no evidence in this case suggesting the mother plants were kept solely for

personal use.

Unlike finite quantities of narcotics kept for personal use, a reasonable jury

could conclude that M r. M ontgomery’s mother plants were a part of the marijuana

grow ing operation. The testimony at trial revealed that M r. M ontgomery

managed an extensive marijuana growing operation in which marijuana could be

harvested for distribution or personal use. The district court correctly found that

10
all 99 plants could be counted for distribution, even though a portion of each

plant might have been for personal use. Aplt. App. at 217. Yet, the district court

apparently concluded that the two mother plants were not involved in the

predicate § 841(a)(1) offense because they were used only for cloning, and the

government “presented no evidence that defendant intended to harvest or

distribute marijuana from any part of the mother plants.” Id. Instead of

categorically excluding the mother plants from the base count because they were

used for cloning, the district court should have considered whether the mother

plants, as used for cloning purposes, contributed to the predicate § 841(a)(1)

offense.

The evidence plainly supports the reasonable inference that some of M r.

M ontgomery’s marijuana plants were clones of the two mother plants. DEA

Agent Brent Coup testified that upon his entry of the home at 1616 South 15th

Street, he located a number of “growing trays” and “grow mix” in a closet. Id. at

140-42. He testified how the trays and grow mix would have been used to

construct a hydroponic marijuana growing system. Id. He also testified that he

observed a “grow room” in the house, id. at 143, containing ventilation fans, a

thermometer, humidity gauge, and track lighting, and easy-listening music

(believed to help the plants grow better), id. at 143-46. He testified that he

located supplies used for the cloning of marijuana plants including highly

fertilized pieces of soil called “grow blocks,” razor blades used to cut shoots from

11
mother plants, and clay pellets that the plants are placed into once they establish

roots. Id. at 150-52. W hile most of the marijuana plants found were located in

the grow room, several small cloned marijuana plants were located in a room

adjacent to the growing room. Id. at 156-57. Agent Coup testified that these

clones had established root systems. Id. at 156. Located in the room with the

potted clones were the mother plants. Id. at 157.

Taking the reasonable inference that some of the 99 “distribution plants”

found in the house were clones of the mother plants, it flows logically that the

mother plants were used or useful in M r. M ontgomery’s distribution enterprise.

Thus they were a part of the predicate § 841(a)(1) offense. This is simple “but

for” causation. But for the mother plants, some, if not all, of the 99 other plants

would not exist. But for the 99 plants, M r. M ontgomery would not have

possessed with intent to distribute, marijuana. Therefore, the mother plants are a

part of M r. M ontgomery’s distribution enterprise and are a part of the predicate §

841(a)(1) offense that M r. M ontgomery “knowingly or intentionally . . .

possess[ed] with intent to . . . distribute.”

In sum, this case is unlike A sch or Rodriguez-Sanchez because there is a

causal link between the mother plants and M r. M ontgomery’s distribution

enterprise that did not exist between the methamphetamine kept for personal use

and that kept for distribution. Because we conclude that the two mother plants

can also be counted toward the total, a reasonable jury could find that M r.

12
M ontgomery possessed with intent to distribute, 101 marijuana plants.

II. A New Trial In the Alternative

Having rejected the district court’s legal premise for the grant of a new

trial, we also note that the district court lacked authority to grant a new trial

because M r. M ontgomery never moved for one. Fed. R. Crim. P. 33(a), states

that “[u]pon the defendant’s motion, the court may vacate any judgment and grant

a new trial if the interest of justice so requires.” M r. M ontgomery moved for a

judgment of acquittal, but he never moved for a new trial. A motion for a new

trial based on anything other than newly discovered evidence must be filed within

seven days of the verdict. Fed. R. Crim. P. 33(b)(2). W e have held that this time

period constitutes a “jurisdictional limit on the district court’s power to act.”

United States v. M iller, 869 F.2d 1418, 1420 (10th Cir. 1989).

Fed. R. Crim. P. 29(d)(1) states that “[i]f the court enters a judgment of

acquittal after a guilty verdict, the court must also conditionally determine

whether any motion for a new trial should be granted if the judgment of acquittal

is later vacated or reversed.” Yet, even this rule requires that a motion for new

trial be before the court. Because M r. M ontgomery never filed a motion for new

trial 4 , much less one within seven days of the verdict, the district court had no

4
M r. M ontgomery suggests that his motion for judgment of acquittal could
be construed by the district court as a motion for new trial. Aplee. Br. at 9. W e
find nothing in M r. M ontgomery’s m otion to even remotely suggest he sought a
(continued...)

13
jurisdiction to order a new trial.

REVERSED. W e REINSTATE the jury’s verdict and REM AND for

sentencing.

4
(...continued)
new trial. Nor does the district court’s memorandum and order suggest that it
construed M r. M ontgomery’s motion for judgment of acquittal as a motion for
new trial. Regardless, even if M r. M ontgomery’s motion for judgment of
acquittal could be construed as one for a new trial, it was filed fourteen days after
the judgment of guilty, seven days too late to satisfy the jurisdictional
requirement.

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