United States v. Sanapaw, Roger D. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2786
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROGER D. SANAPAW,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02 CR 242—William C. Griesbach, Judge.
____________
ARGUED JANUARY 21, 2004—DECIDED APRIL 27, 2004
____________
Before FLAUM, Chief Judge, and POSNER and RIPPLE,
Circuit Judges.
FLAUM, Chief Judge. In 2003, a jury found Roger D.
Sanapaw guilty of two counts of knowingly and intention-
ally distributing marijuana. Sanapaw now appeals and
challenges the jury instruction given at his trial defining
marijuana as well as the sufficiency of the evidence showing
that the substance he distributed was marijuana. For the
reasons stated herein, we affirm.
2 No. 03-2786
I. BACKGROUND
In the summer of 2002, Jamie Matchopatow contacted the
Menominee Tribal Police Department and informed police
officers that Roger Sanapaw was selling marijuana on the
Menominee Reservation. Matchopatow claimed that he had
purchased marijuana from Sanapaw on at least one prior
occasion, and agreed to take part in two more transactions
with Sanapaw while police officers observed. On July 3,
2002 and July 23, 2002, officers provided Matchopatow with
money and a tape-recording device and waited outside
Sanapaw’s house while Matchopatow went inside. When
Matchopatow entered Sanapaw’s house, he asked Sanapaw
if he had drugs. Sanapaw replied that he had “20’s”, which
Matchopatow explained at trial meant $20 bags of mari-
juana. On July 3, 2002, Matchopatow exchanged $40 for two
$20 bags of marijuana from Sanapaw. On July 23, 2002,
Matchopatow exchanged $40 for joints and a $20 bag of
marijuana.
The police officers present on July 3, 2002 were Officer
Keith Sorlie and Officer David Wynos. Officer Sorlie tes-
tified at trial that Matchopatow returned to the undercover
car with “two baggies of marijuana.” Officer Sorlie had seen
marijuana numerous times previously and stated that the
substance in Matchopatow’s baggies appeared to be mari-
juana. Officer Sorlie then showed the baggies to Officer
Wynos, who also recognized the substance purchased from
Sanapaw as marijuana.
The police officers present on July 23, 2002 were Officers
Sorlie and Wynos, as well as Shawano County Sheriff’s
Deputy Gerald Thorpe. Deputy Thorpe has extensive ex-
perience investigating drug cases, including cases involving
marijuana. Based upon his prior experience, Deputy Thorpe
identified the materials purchased from Sanapaw as
marijuana cigarettes and a baggie of what appeared to be
No. 03-2786 3
marijuana. Officers Sorlie and Wynos agreed that the
substance purchased from Sanapaw on July 23 was mari-
juana.
The baggies and joints that Sanapaw sold on July 3
and July 23 were analyzed by Michelle Zimmerman, a
forensic scientist at the Wisconsin State Crime Laboratory.
Zimmerman, a chemist, is trained to analyze evidence for
the presence of controlled substances. Her analysis of the
substances at issue in this case revealed that the greenish-
brown plant material sold by Sanapaw contained both
tetrahydrocannabinol (“THC”) and other cannabinoids.
Zimmerman explained that THC occurs naturally only in
marijuana, and although it can be synthesized, the presence
of other cannabinoids is not consistent with synthetic THC.
Zimmerman further testified that her visual inspection of
the material revealed tiny cystolith hairs that are charac-
teristic of marijuana leaves. Based upon this, Zimmerman
concluded that the substance procured from Sanapaw was
marijuana.
Sanapaw was arrested by law enforcement officers on
November 6, 2002. When Sanapaw was informed that he
was charged with selling marijuana, he replied, “Why don’t
you go after the coke dealers? I just sell marijuana to make
ends meet.”
Sanapaw was subsequently indicted for knowingly and
intentionally distributing marijuana on July 3, 2002 and
July 23, 2002. His jury trial took place on February 11 and
12, 2003. The substances sold by Sanapaw were entered
into evidence, and the jury was allowed to examine the
plant-like material wrapped within two plastic bags and
sealed with labels. Sanapaw was convicted on February 12,
2003, and now appeals.
4 No. 03-2786
II. DISCUSSION
Sanapaw’s first issue on appeal is whether the district
court properly instructed the jury that marijuana “means
all species of marijuana containing tetrahydrocannabi-
nol . . . .” Sanapaw acknowledges that the jury instruction
conforms with this Court’s definition of marijuana in United
States v. Lupo, 652 F.2d 723, 728 (7th Cir. 1981). However,
Sanapaw argues that Lupo was wrongly decided and
amounts to improper legislation by the judiciary. We
disagree.
It is true that in the Controlled Substances Act of
1970 (“the Act”), Congress defined marijuana to include “all
parts of the plant Cannabis sativa L.,” rather than “all
species of marijuana containing tetrahydrocannabinol.”
See 21 U.S.C. § 802(16). However, it is also true that when
the Act was drafted, Congress believed that marijuana was
monotypic—that is, Congress believed that Cannabis sativa
L. was the only type of marijuana. See United States v.
Walton, 514 F.2d 201, 203 (D.C. Cir. 1975). Assuming that
Cannabis is polytypic,1 the question thus becomes whether
it would be unreasonable to apply the Act only to the
species of marijuana known as Cannabis sativa L.
This Court, and every other court that has decided
this issue, has concluded that it would be manifestly unrea-
sonable to interpret the Act to apply solely to Cannabis
sativa L. See, e.g., Lupo, 652 F.2d at 728; Walton, 514 F.2d
at 203; United States v. Gagnon, 635 F.2d 766, 770 (10th
Cir. 1980); United States v. Maskeny, 609 F.2d 183, 188 (5th
Cir. 1980); United States v. Kelly, 527 F.2d 961, 964 (9th
Cir. 1976); United States v. Gavic, 520 F.2d 1346, 1352 (8th
1
Although Sanapaw provides no citations in his brief to establish
the polytypic nature of marijuana, United States v. Walton
indicates that “the possible polytypical status of marijuana” was
discovered in the late 1960’s. 514 F.2d at 203.
No. 03-2786 5
Cir. 1975); United States v. Dinapoli, 519 F.2d 104, 106 (6th
Cir. 1975); United States v. Honneus, 508 F.2d 566, 574 (1st
Cir. 1974); United States v. Kinsey, 505 F.2d 1354, 1354 (2d
Cir. 1974). The legislative history of the Act indicates that
the purpose of banning marijuana was to ban the euphoric
effects produced by THC. See Walton, 514 F.2d at 202.
However, all species of marijuana possess THC. See id. It is
absurd to believe that Congress intended to ban the
euphoric effect of one species of marijuana but not the exact
same euphoric effect of other species of marijuana, and we
refuse to adopt such an interpretation. As even Sanapaw
admits, strict construction of statutory language “is to be
avoided when the result would be senseless or clearly at
odds with the evident purpose of the statute.” See Veprinsky
v. Fluor Daniel, Inc., 87 F.3d 881, 888 (7th Cir. 1996).
Congress’s thirty-year acquiescence to a definition of
marijuana that includes all Cannabis containing THC in-
dicates that the courts have properly interpreted the Act.
We therefore decline Sanapaw’s invitation to overturn
United States v. Lupo. We conclude that the jury instruction
given by the district court, proper under Lupo, was not in
error.
Even if the jury instruction was proper, Sanapaw argues
that the government did not provide sufficient evidence
to prove that he sold marijuana rather than some other
vegetation containing THC. Sanapaw first insists that the
government’s case must fail because no witness identified
the substance he sold as Cannabis. He further asserts that
it is not enough that numerous officers stated that the sub-
stance appeared to be marijuana because none of the offi-
cers were qualified as an expert who could testify that it
was actually marijuana. Finally, Sanapaw contends that
the government failed to offer evidence that the substance
was not one of the legal parts of the marijuana plant,
namely, its stalks, fiber, or sterilized seeds. Sanapaw’s ar-
gument is a nonstarter.
6 No. 03-2786
In a challenge to the sufficiency of the evidence, this
Court “view[s] the evidence in the light most favorable to
the prosecution and will reverse a conviction only if no ra-
tional trier of fact could have found the essential elements
of the offense charged beyond a reasonable doubt.” United
States v. Peters, 277 F.3d 963, 967 (7th Cir. 2002). When a
defendant is charged with the distribution of a controlled
substance, “the government need not prove the identity of
a controlled substance by direct evidence, as long as the
available circumstantial evidence establishes its identity
beyond a reasonable doubt.” United States v. Dominguez,
992 F.2d 678, 681 (7th Cir. 1993). Such circumstantial
evidence includes: “on-the-scene remarks by a conspirator
identifying the substance as a drug; lay-experience based on
familiarity through prior use, trading, or law enforcement;
and behavior characteristic of drug sales.” Id. In other
words, neither expert testimony nor a chemical test of the
substance sold is required to prove distribution of a con-
trolled substance.
In this case, the government presented ample evidence
from which a rational jury could conclude that Sanapaw
distributed marijuana. Specifically, three law enforcement
officers with prior experience in drug detection testified
that the substance appeared to be marijuana. Additionally,
Matchopatow, a marijuana user, testified that he asked
Sanapaw to sell him marijuana and that Sanapaw did sell
him marijuana. Zimmerman, a chemist who analyzes con-
trolled substances, testified that the substance sold by
Sanapaw contained THC as well as other cannabinoids
found in marijuana but not in synthetic THC. Finally, when
Sanapaw was arrested he admitted to selling marijuana “to
make ends meet.”
The government also presented sufficient evidence to
prove that the marijuana Sanapaw sold was not one of the
legalized parts of the plant. 21 U.S.C. § 802(16) excludes
from the definition of marijuana “the mature stalks of such
No. 03-2786 7
plant, fiber produced from such stalks, oil or cake made
from the seeds of such plant . . . or the sterilized seed of
such plant.” Zimmerman, a forensic scientist, testified that
the substance Sanapaw sold was a greenish-brown plant
material with cystolith hairs characteristic of marijuana
leaves. Marijuana leaves are indisputably not a legal form
of the marijuana plant. Moreover, if the jury had any doubt
about Zimmerman’s testimony, they had the opportunity to
examine the marijuana themselves.
When every reasonable inference is drawn in favor of
the government, as it must be at this stage, it is clear that a
rational jury could have found that Sanapaw distributed
marijuana containing THC. As we earlier held, the
Controlled Substances Act of 1970 banned all forms of
marijuana containing THC. The government need not pre-
sent expert botanical testimony regarding the genus and
species of a controlled substance to prove its case.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-27-04