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Susan J. Naughton
_________________
was on br
Albert Scalia
to suppress
of marijuana, 21 U.S.C.
criminal forfeiture
841(a)(1);
conviction under
21 U.S.C.
21 U.S.C.
2, and a
853.
Scalia
sentence imposed
841(b)(1)(B)(vii) (minimum
sentence of
five
plants).
Scalia contends
of one
that
hundred or
the
more marijuana
affidavit supporting
the
and that
evidence
plants
the district
on which to find
were seized
court lacked
from his
sufficient reliable
residence.
Finding no
error, we
affirm.
A.
A.
Probable Cause
Probable Cause
______________
On February
14, 1992,
of the
state court
warrant to
marijuana
and
related
affidavit
relied upon,
search appellant's
paraphernalia.
inter
_____
The
informant told
residence
before
on
coming
MacMaster
The
supporting
provided by
that he
numerous occasions
to MacMaster.
MacMaster's
alia, information
____
residence for
and
had
visited the
as recently
informant
as
said that
Scalia
ten days
he had
to
fifty plants
cooler.
of various
marijuana
in a
lights
from forty-
basement walk-in
that
s/he was
able to
of the
plants in the
artificial
sizes
told MacMaster
appellant's living
The informant
his/her school
a foot tall in
walk-in cooler
were being
grown under
installed
outside the
other rooms
operated
The
by switches
shotguns and a
the infor-
MacMaster affidavit
did not
establish the
appeal is that
reliability and
enforcement
officials
had
had no prior
_____
not provided
previously;
and
(3)
law
did not
attempt
to
corroborate the
informant's
tip through
follow-up
22 (1st Cir.
officer's common-sense
the
the
'veracity' and
'basis
in the affidavit .
of knowledge'
evidence of a
determination that,
"given all
. . , including
of persons
supplying
crime [would]
be found
in a
particular
criminal or
any wrongdoing."
nor is
(Emphasis added.)
a statement
cally true but designed to camouflage the fact that the informant
had
Gener-
____________________
affidavit
truthful.
are presumed
valid and
United States v.
______________
To mount an effec-
______
Franks
______
________
stantial
if the defendant
that a false
makes a "sub-
statement in the
affidavit has been made knowingly and intentionally, and (2) that
the
false
cause."
1986).
statement is
necessary for
clusory"
and should
the finding
be supported by
comparable showing
than con-
"[a]ffidavits or
of probable
sworn or
is required if
the defendant
would
rendered
misleading by
material
omissions.
See
___
United
______
States v. Rumney, 867 F.2d 714, 720 (1st Cir.), cert. denied, 491
______
______
_____ ______
U.S. 908 (1989).
Appellant
attempted an
neither
offer of
proof relating
the informant
record, or
other
any
requested
Franks
______
to any
hearing
nor
material omission
involvement
criminal or
with the
law,
juvenile
which
might
We therefore find no
information provided
considered
can
by
a "concerned
inherently suspect,
have had
no
"track record"
informant's competence to
since law
against
citizen" should
be
enforcement officials
which to
assess
the
relating
volunteering information.
We disagree.
"[A] warrant
appropriate inquiry
present information is
_______ ___________
always
being
whether the
truthful or reliable."
informant's
United States v.
_____________
Harris,
______
581-82 (1971))
403 U.S.
573,
we have
cert.
_____
recognized that,
a professional .
_ ____________
(emphasis added),
. . but
where the
informant was
a private citizen
with no known
__ _____
his own
informant's story
. .
[,] the
may
be more
on
easily
accepted . . . ."
(1st Cir. 1984)
379-81
evidence
(1st Cir.
1975)) (emphasis
added).
517 F.2d
377,
Since there
came to MacMaster
is no
either had a
neutral judicial officer fairly could find that the informant was
"an
informant's
previously furnished
__________ _________
reliability
need
not
law enforcement
. .
the informant's
the place
United States
veracity through
the very
specificity and
___________
searched or the
v. Taylor, 985
items to
F.2d 3, 6 (1st
be seized."
_____________
Caggiano,
________
______
899 F.2d at
fact that
recitation
MacMaster, the
the
interior
doors,
of
the
confidential
particularity of
and contents
multiple firearms),
of
upon
As is apparent from
provided
to
of
the
the
was based
information
residence (e.g.,
____
location, size,
padlocked
and number
of
artificial
by
considerable
lights),
appellant
and
inside
the
the
intrinsic support
illegal marijuana
search
premises, provided
sales
capacity to
convey
reliable intelligence
relating to the
criminal activity
appellant argues
the informant's
that MacMaster
tip before
should have
applying for
of Scalia's residence.
a search
have never
infor-
confidential informant's
tip
to
MacMaster comported
with
State Police
by
eight unidentified
citizens
with the
expressing
combined force
expert
of the
assessment,
and
informant's
the
detailed tip,
corroborative
police
that
marijuana
and
related
paraphernalia would
be
found
in
appellant's residence.
B.
B.
subject to a
finds by
preponderance of
21
U.S.C.
112 S. Ct.
the
272 (1991).
based on
the total
the
Were it not
court
defendant
841(b)(1)(B)(vii).
See United
___ ______
841(a)(1) is
sentence if the
evidence that
of weight."
States
______
21 U.S.C.
manufactured or
less
convicted under
to a 46-to-57
month
Category
weight of
the marijuana
plants (111.8
residence.
See U.S.S.G.
___
2D1.1(c)(9)
___
reduction
for
("Where a
the maximum
acceptance
of the
of
responsibility);
id.
___
5G1.1(b)
is greater than
the statutorily
Maine Drug
examined
his
education and
plants
experience,
were marijuana.
Bristow, visually
on the premises.
Bristow concluded
Based on
that all
112
half
chemical analysis.3
inches to
chemical analysis
juana
plants.
court
found
two
feet tall)
for
that all
evidentiary hearing,
112 plants
were
The
marijuana.
the district
Scalia was
four factors:
plants seized at the search scene as marijuana; (2) the fact that
all
the
plants
location;
sample
(3)
plants
appellant was
were
seized contemporaneously
the positive
tested, and
chemical
(4)
the
analysis
from
on all
absence of
the
fifteen
evidence
marijuana.
same
that
Appellant
attempting to
undercut the
identification.
least
two
marijuana
reliability of
Bristow's visual
conceded that at
other plant
when
they
species which
are only
one
grow
and
in Maine
one-half
look like
inches tall.
____________________
these
him incapable of
from marijuana.4
distin-
Rather, Bristow
denied, 493
______
v.
of
the other
(factual findings
tion[,]'"
on by
the district
"Although
factors relied
the sentencing
court must
'err on
as well.
Cir. 1991)
of cau-
____________________
4The relevant exchange was as follows:
Counsel:
Bristow:
Yes.
Counsel:
Bristow:
Counsel:
Th
Yes, sir.
12
1890,
substance based
States v. Sklar, 920 F.2d 107, 113 (1st Cir. 1990)), drug-quanti______
_____
ty
estimations
precise.
See
___
need
not
be
U.S.S.G.
6A1.3
at
indicia
_______
court
or
scientifically
("In resolving
any reasonable
consider
relevant
information
without
provided
reliability
___________
(emphasis added);
(4th
may
statistically
Cir. 1992)
that the
to
__
support
_______
United States v.
_____________
(noting that
information
its
___
has
probable
________
sufficient
__________
accuracy.")
________
1016, 1018
drug-quantity estimations
may be
based
on hearsay, nonscientific
entries,
defendant,
extrapolations of
potential drug
output from
seized components).
More to the present point, courts have endorsed statistically based drug-quantity
test
extrapolations predicated on
samples in circumstances
random
was able to
reliability."
v. McCutchen,
F.2d
,
(3d Cir. 1993)
_________ ____
_____ ____
United States
______________
[No. 92-1536,
1993 U.S. App. LEXIS 7651, at 11 (3d Cir. Apr. 13, 1993)]; United
______
13
of drugs] is grounded
("It is suffi-
method of estimating
in fact and
is carried
reliabili-
reasonably
the
evidence
___
___
to conclude
that appellants
of drugs at least
assigned base
indicia
ment presented
quantity
F.2d at
equal to the
offense
level.").
were responsible
for a
sufficient
that
(1)
proper
"random"
selection
sufficiently similar
in physical
appearance; and
See McCutchen,
F.2d at
[No. 92-1536, 1993
___ _________ ___
____
U.S. App. LEXIS 7651, at 11-12 (3d Cir. Apr. 13, 1993)].
the
overall margin
_______ ______
mation must be
defendant
minimum
(4) the
of reliability
__ ___________
in a
In sum,
drug-quantity approxi-
that the
than
warranted by
14
the reliable
evi-
dence.5
able reliability
procedures employed by
countervailing
drug-quantity
evidence, we
utter absence of
affirm
the district
court's findings.
Affirmed.
Affirmed.
________
____________________
______
leaf structure, were seized on the same day from the same residen
giving rise to a "strong inference" that only marijuana plants w
seized. McCutchen,
F.2d at
[No. 92-1536, 1993 U.S. A
_________
____
_____
LEXIS 7651, at 13 (Apr. 13, 1993)]. Finally, more than twelve of
seized plants (i.e., over 10% of the total) would have had to t
____
negative in order to bring the total below the 100-plant cut
required to trigger the mandatory five-year minimum sentence under
U.S.C.
841(b)(1)(B)(vii).
Yet all fifteen random samples tes
positive for marijuana.
15