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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.)
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 Cir.l994]25F.3d36.)
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.)
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
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 [1st Cir.l994]25F.3d36.)
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.
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.)
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/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 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.)
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/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.
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