Federal Law On Marijuana

Defining A Cannabis Plant Under Federal Law

Given the growth progression of a Cannabis seed into a mature Cannabis plant, it is not always easy for courts to determine just when a "plant" comes into being. For example, John Burke was arrested in 1991 in Bangor, Maine, after police officers searched his home under a warrant and found a basement growing room containing 34 Cannabis plants ranging in size from one to three feet. Additionally, the officers found 16 one-to-three inch cuttings that were each growing in a separate pot. The District Court sentenced Mr. Burke under the pre-Nov. 1, 1995 federal guidelines by calculating his offense based on 50 plants (34 plants + 16 plant cuttings) which bumped the calculation up to the much harsher one-kilo-per-plant standard then in existence.

Mr. Burke contested the calculation by arguing that some of the 16 cuttings were so fresh that they could not yet be considered "plants." (If even one cutting could be disqualified, the sentence would have to be recalculated based on the more lenient 100-grams-per-plant standard.) Mr. Burke presented the testimony of a botany expert who stated that the root-like growth at the bottom of the cuttings was simply primordia,OT the precursor of roots yet to form. The expert testified that this newly emerging growth at the base of the cuttings was not "roots" because it was not yet capable of absorbing water, and hence the cuttings were not really viable "plants" in their own right.

The First Circuit Court of Appeals rejected Mr. Burke\'s argument, holding that for purposes of the federal sentencing guidelines, "plant status is sufficiently established when there is some observable evidence of root formation. In other words, at the first sign of roots, a plant exists for sentencing purposes." (US v. Burke [1st Cir. 1993] 999 F2d 596.)

The Sixth, Eighth and Ninth Circuits have all followed suit, ruling that a "plant" exists once it has developed root structures that can be seen with the naked eye. As the Ninth Circuit put it:

Marijuana plants have three characteristic structures, readily apparent to the unaided lay person\'s eye: roots, stems, and leaves. Until a cutting develops roots of its own, it is not a plant itself but a mere piece of some other plant. We therefore adopt the rule that cuttings are not "plants" unless there is readily observable evidence of root formation. (U.S. v. Robinson [9th Cir.l994]35F.3d442.)

1995 Guideline\'s Revision: "Plant" Defined

As part of the 1995 revisions of the federal sentencing guidelines, the Sentencing Commission defined the word "plant." The Commission essentially adopted the Ninth Circuit\'s definition as stated above in the Burke case. Specifically, beginning November 1, 1995, for the purposes of the federal guidelines, a plant is defined as:

. . .An organism having leaves and a readily observable root formation (e.g., a marijuana cutting having roots, a rootball, or root hairs is a marijuana plant.) (Sec. 2D1.1 Application Note 22, as revised.)

Multiple Stemmed Plants

Because experts agree that Cannabis is a single stem plant (i.e., one seed, when germinated, will typically produce one stem), at least the Ninth Circuit has adopted the rebuttal presumption that "each stalk protruding from the ground and supported by its own root system should be considered one plant, no matter how close to the other plants it is and no matter how intertwined are their root systems." Rebuttable presumptions function as general rules. Therefore, a defendant with an unusual multi-stem plant has the burden of proving that the multiple stems emerge from a single root system and that there is thus only a single plant for sentencing purposes.

Sex of the Plants

The First, Second Third, Eighth, and Ninth Circuits have held that although most growers weed out and discard male Cannabis plants, both male and female plants are equally counted under the federal sentencing guidelines. (US v. Gallant[lst dr. 1994] 25 F.3d 36.)

The November 1995 revisions make this explicit by stating that Cannabis plants regardless of sex are treated as the equivalent of 100 grams of marijuana. Marijuana plants have three characteristic structures, readily apparent to the unaided lay person\'s eye: roots, stems, and leaves. Until a cutting develops roots of its own, it is not a plant itself but a mere piece of some other plant. We therefore adopt the rule that cuttings are not "plants" unless there is readily observable evidence of root formation. (U.S. v. Robinson [9th Cir.l994]35F.3d442.)

. . .An organism having leaves and a readily observable root formation (e .g., a marijuana cutting having roots, a rootball, or root hairs is a marijuana plant.) (Sec. 2D1.1 Application Note 22, as revised.)

Multiple Stemmed Plants

1995 Guideline\'s Revision: "Plant" Defined

\\s part of the 1995 revisions of the federal sentencing guidelines, the Sentencing Commission defined the word "plant." The Commission essentially adopted the ^inth Circuit\'s definition as stated above in the Burke case. Specifically, beginning November 1, 1995, for the purposes of the federal guidelines, a plant is defined as:

. . .An organism having leaves and a readily observable root formation (e .g., a marijuana cutting having roots, a rootball, or root hairs is a marijuana plant.) (Sec. 2D1.1 Application Note 22, as revised.)

Multiple Stemmed Plants

Accordingly, all federal courts will now count both male and female plants when calculating a defendant\'s sentence.

1995 Guideline\'s Revisions: Wet vs. Dry Marijuana

The Seventh and Tenth Circuits have held that the water naturally contained in freshly harvested marijuana which has not yet had time to dry is part of the "mixture or substance" containing the controlled substance, and hence if a defendant was arrested with undried marijuana in those circuits, his sentence was calculated based on the wet weight of the marijuana, rather than its dry weight. (US v. Garcia [CAJInd. 1991] 925 F2dl70; US v. Pinedo-Montoya [CA.10 N.M. 1992] 966 F2d 591.)

Effective November 1995, however, the guidelines were amended to include a brief "application note," concerning the moisture content of harvested marijuana. Since freshly harvested marijuana naturally contains a large percentage of water within its cells, it weighs much more than the same amount of marijuana which has been allowed to dry. Similarly, since marijuana grown outdoors is often harvested just as fall rains are beginning, rain soaked marijuana is occasionally confiscated.

Because wet marijuana is essentially "unusable," and must be dried in order to be smoked, the November 1995 revision instructs federal judges that they must determine the weight of marijuana based on its dry weight:

... In the case of marijuana having a moisture content that renders the marijuana unsuitable for consumption without drying (this might occur, for example with a bale of rain-soaked marijuana or freshly harvested marijuana that had not been dried), an approximation of the weight of the marijuana without excess moisture content is to be used. (Sec. 2D1.1, Application Note 1, as revised.)

Seizure and Loss of Assets

If you are convicted, or in many cases merely arrested, for engaging in a marijuana crime, the government may try to take any and all property that has been used to "facilitate" your crime. This seizure is legal under various "forfeiture laws that have been enacted the last seven years. In California alone, more than $ 180,000,000 worth of assets have been seized under the state forfeiture law since it went into effect in 1989. In fact, you may have seen the advertisements for auctions at which drug dealers\' cars, boats, and homes are sold.

There\'s no question that police officers are highly motivated to initiate forfeiture proceedings. In some states, law enforcement agencies are permitted to use seized assets and property to fund and implement future drug investigaons. In fact, the federal government openly encourages forfeiture actions by ointing out to federal and state police agencies how seized property can benefit ie agency. For example, one recent government manual on forfeiture published y the Department of Justice counseled:

The seizure of a boat valued at six figures that was purchased as a result of illegal narcotics profiteering can certainly ease the strain of tight government budgets and increase the availability of "buy" or "flash" money .... Asset forfeiture can be a financial benefit to all levels of government if the illicit assets are converted to funds that benefit the law-enforcement community. (US DOJ, Asset Forfeiture "Public Record and other information on Hidden Assets, 2nd in a series, p. 1, reprinted January 1992.)

In fact, in the fall of 1990, the Justice Department circulated a bulletin to ederal prosecutors pleading with them to seize more property in order to meet mdget projections. The memo urged, "Every effort must be made to increase brfeiture income during the remaining three months of 1990."

One of the most heinous abuses of the forfeiture laws occurred on October 1,1992, when state and federal drug agents raided Donald Scott\'s 200 acre ranch in Malibu, California. Responding to his wife\'s screams when agents kicked in their front door, Mr. Scott grabbed his gun, ran to his wife\'s aid, and was shot twice in the chest by intruding agents. He died from his wounds.

The raiders, attempting to justify the raid, claimed it was based on an aerial observation of Cannabis plants growing on Mr. Scott\'s property. In fact, however, no plants were ever found, nor was any evidence seized suggesting that such plants ever existed. After a five month investigation, a 62 page report concluded that the raid "was motivated, at least in part, by a desire to seize and forfeit the ranch for the government." Or, as stated by the Ventura County District Attorney, the "primary purpose of the raid was a land grab by the Sheriff\'s department."

Usually the items that the government takes are sold at a public auction and the government keeps the money. In some states, if the police request it, the property (usually a car) is turned over to the law-enforcement agency that seized it and is used in undercover operations. Under both federal and state forfeiture laws, any items used to help grow, process, or transport marijuana are subject to forfeiture. In addition, any money furnished "in exchange for a controlled substance" or "traceable to such an exchange" is subject to forfeiture. Likewise, any property purchased with cash derived from marijuana sales is subject to seizure by the government.

In many states forfeiture proceedings can be initiated without any criminal conviction and even without any criminal charges being filed. To make matters even worse, forfeiture proceedings are often considered civil rather than criminal.

In California, your car, boat, or plane is subject to forfeiture if it has been used to facilitate possession, sale, or cultivation often pounds or more of marijuana as measured by the marijuana\'s dry weight. California has a special exception for cars owned by married people. Under this exception, if one spouse uses the family vehicle to sell more than five pounds of marijuana, and the other spouse is innocent of any wrongdoing, the innocent spouse is permitted to keep the vehicle as long as it is not worth more than $10,000. If the vehicle is worth more than $10,000, the innocent spouse can still keep it, but must pay the state the amount in excess of $10,000.

As noted above, most states can also take any cash, checks, securities, or other things of value that were furnished or intended to be furnished by any person in exchange for marijuana. In other words, any money or property that the state can show was obtained by selling marijuana is subject to forfeiture. When determining whether cash should be forfeited, the courts will often employ a "net worth" analysis, where the government shows that the alleged marijuana dealer has substantial assets but no legitimate or declared source of income that could account for the his degree of wealth. The government\'s case is often supported by proof that the alleged dealer has not filed income tax returns in several years. With such a strategy, the government can often force the forfeiture of huge sums of money. Similarly, if the government can show (by a very low standard of proof) that drug money was used to purchase property such as cars or homes it can also seize such property.

In many states, the government need only show that the property was linked to a marijuana crime. To keep the property, the owner must prove that the property was not used or obtained in violation of the drug laws, or that it was so used or obtained without his or her knowledge or consent.

The government does not have to trace the proceeds to a particular marijuana transaction; it is enough if the proceeds can be linked to marijuana trafficking generally. Also, cars, homes, and other property acquired during or shortly after the period of the crime are presumed to be acquired with proceeds from the crime. The owner may rebut the presumption if he or she can prove that the property was acquired with legally obtained funds, rather than with "drug money."

Sometimes property is forfeited because of statements made by the defendant. For example in one recent Tennessee case, police officers discovered a well-tended crop of 52 Cannabis plants in John Hill\'s garden. In addition to punishing him under the criminal law .Tennessee also took his car because Mr. Hill allegedly made a statement to police admitting that he used the car to bring the Cannabis seeds to Nashville from California. In the court\'s words, "these seeds were turned into a thriving and potentially highly profitable marijuana crop." In other words, the car was used to facilitate the transportation of raw materials used to manufacture a controlled substance and hence subject to forfeiture. (Hill v. Lawson [TennApp. 1992] 851 S.W.2d 822.)

In some states, there are a few built-in exceptions that offer some protection against asset forfeiture. For example, in California, as mentioned above, a vehicle is subject to forfeiture only if it was used to facilitate a crime involving ten pounds or more of marijuana. In other words, at least under the California law, if a police officer finds a few joints in your car, you are not going to lose your car to the state. Federal law is much harsher. Under the federal scheme, the government can take your vehicle if any marijuana was found inside, or if the vehicle was used in any way to help commit a marijuana crime. For example, the government took Edna Salas \'7975 Mercedes 280S after a DEA agent found four joints in the ashtray. The agent\'s affidavit stated:

I personally searched said vehicle at said location on said date and in the ashtray, located in the area of a vehicle commonly referred to as the "dashboard," I found the partial remains of four (4) cigarette butts, which appeared, in my experience, to be Marihuana. I have been a Special Agent for the Drug Enforcement Administration for approximately eight (8) years (including its predecessor agencies) and I have spent one (1) year as a Criminal Investigator for the United States Bureau of Customs prior to that. I have seen and smelled Marihuana on hundreds of occasions and I am very familiar with its appearance and aroma.

The federal "zero tolerance" rule is abused by law enforcement. In July 1992 the police in Oakland, California, feeling too constrained by the state\' s ten-pound rule restricting automobile forfeitures, teamed up with federal DEA agents in a marijuana crackdown. In this sweep, the Oakland police cited 77 marijuana buyers and, using the DEA agent\'s authority under federal law, confiscated forty-three cars. At least one such seizure occurred after a ten-dollar marijuana deal! In a similar raid two months earlier, thirty-nine cars were seized. Eventually, all but three cars were returned after the owners paid an "assessment fee."

In addition to taking your cash and your car, the state and federal governments can take your home and real-estate. On a positive note, California revised its forfeiture laws in 1994 and, in doing so, removed all marijuana crimes as triggers forreal property forfeiture. In other words, in California a person cannot lose his or her home to the government for growing Cannabis on the property. In contrast, the federal government can seize a home and real-estate if even a single Cannabis plant is found on the property. Under federal law even if the marijuana was solely for the person\'s own use and not for sale, it can form the basis for property forfeiture. The federal government took a man\'s vehicle after finding into a thriving and potentially highly profitable marijuana crop." In other words, the car was used to facilitate the transportation of raw materials used to manufacture a controlled substance and hence subject to forfeiture. (Hill v. Lawson [TennApp. 1992] 851 S.W.2d822.)

The federal "zero tolerance" rule is abused by law enforcement. In July 1992 the police in Oakland, California, feeling too constrained by the state\'s ten-pound rule restricting automobile forfeitures, teamed up with federal DEA agents in a marijuana crackdown. In this sweep, the Oakland police cited 77 marijuana buyers and, using the DEA agent\'s authority under/cetera/ law,confiscated forty-three cars. At least one such seizure occurred after a ten-dollar marijuana deal! In a similar raid two months earlier, thirty-nine cars were seized. Eventually, all but three cars were returned after the owners paid an "assessment fee."

In addition to taking your cash and your car, the state and federal governments can take your home and real-estate. On a positive note, California revised its forfeiture laws in 1994 and, in doing so, removed all marijuana crimes as triggers for real property forfeiture. In other words, in California a person cannot lose his or her home to the government for growing Cannabis on the property. In contrast, the federal government can seize a home and real-estate if even a single Cannabis plant is found on the property. Under federal law even if the marijuana was solely for the person\'s own use and not for sale, it can form the basis for property forfeiture. The federal government took a man\'s vehicle after finding only "thirteen grains of marijuana" in the vehicle. Leonard Willis lost his Michigan home after officers found two Cannabis plants in an attic growroom.

If the federal government finds that you were growing Cannabis on your property, it can force you to give up the entire piece of property, not just the portion where the Cannabis was found growing. For example, in one federal case, a man was charged with possessing more than 700 Cannabis plants with intent to distribute them. The evidence was undisputed that all the plants were grown on a very small portion of land. Despite this fact however, a federal court ordered the forfeiture of the man\'s entire 40-acre parcel of land. In another case, the federal government successfully seized a man\'s condominium for selling $250 worth of cocaine on the premises.

Some people, after being arrested on a marijuana charge, try to shield their assets from possible forfeiture by transferring title to the property to a friendly innocent party. Suffice it to say that the government is not so easily tricked. To protect against such ploys most states have created "the doctrine of relation back." Under the relation-back doctrine, the title to property is judged at the time the property was used to commit the crime. Therefore, transferring title in property after an arrest does no good, because title has already vested in the government at the time the property was used to commit the crime.

In fact, many absolutely innocent people get caught up in this doctrine when they purchase a vehicle only to learn later, when the government takes it, that it was previously used in a drug deal. These people must then prove their own innocence, by showing that they had no knowledge that the vehicle was in any way related to illegal drugs. The attorney fees to handle such a matter often exceed the value of the car; so for practical reasons, many people do not contest the seizure, despite their innocence.

Forfeiture of Currency Found Near Marijuana

Under federal law and under many state laws, money that is found "in close proximity to forfeitable controlled substances" is itself forfeitable on the presumption that it was obtained from illegal drug transactions. This presumption places the burden on the money\'s owner to prove that money was legally acquired. It can be very difficult to rebut this presumption.

In one 1993 case in Missouri, Robert Meister forfeited $9,593.22 after police stopped his van for speeding and discovered a small amount of marijuana on Mr. Meister and his passenger. At the police station, Mr. Meister\'s van was inventoried, during which the police discovered a volleyball size bag of a substance resembling marijuana (but which was never proven to be marijuana); numerous books about marijuana growing; numerous patches depicting Cannabis leaves; a box containing 147 small wooden pipes, and several bags containing a substance labeled "herbal bliss."

Mr. Meister testified that he traveled the country selling marijuana novelty items. He testified that the nine thousand dollars was the legal proceeds from these sales, and was not related to the small amount of marijuana found in the van.

He produced invoices from some of his sales, but refused to provide tax information. The court held that Mr. Meister had not presented sufficient evidence to overcome the presumption that the money was actually drug proceeds. As a result, Mr. Meister lost over nine thousand dollars to the government. (State v. Meister [MoApp.W.D. 1993] 866 S.W.2d 485.)

Likewise, in a recent Georgia case, police found a quarter ounce of marijuana in Butch Moore\'s pocket, along with $200 cash. The court upheld the forfeiture of the 200 dollars because of its close proximity to the marijuana. Additionally, because Mr. Moore was driving his 1987 Camera when he was arrested, the court ruled that the car was being used to facilitate what would have been a marijuana sale. As a result, Mr. Moore was forced to forfeit his Camera. All this for one-quarter ounce of marijuana! (Moore v. State [GaApp. 1993] 432 S.E.2d 597.