United States v. Bernitt, Alan ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3065
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALAN L. BERNITT,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02-CR-210—J.P. Stadtmueller, Judge.
____________
ARGUED APRIL 2, 2004—DECIDED DECEMBER 15, 2004
____________
Before EASTERBROOK, MANION, and WILLIAMS, Circuit
Judges.
WILLIAMS, Circuit Judge. Alan L. Bernitt, a resident of
Ozaukee County, Wisconsin, was found guilty by jury on
two counts of manufacturing marijuana and one count of
possessing marijuana with intent to distribute. After the
trial, the district court entered a preliminary order of for-
feiture for Bernitt’s real property on which the marijuana
was growing. Bernitt now appeals. Bernitt alleges that the
police did not have valid consent to search his home and
unattached garage; that the evidence was not sufficient to
2 No. 03-3065
support the jury verdict; and finally, that the order for
forfeiture of his farm violated the Eighth Amendment’s
prohibition against excessive fines. We affirm.
I. Background
Before his incarceration, Bernitt lived on his farm in
Ozaukee County, Wisconsin. On July 24, 2002, acting on an
informant’s tip that marijuana plants were growing along-
side Bernitt’s home, Ozaukee County police officers John
Hoell, Jason Vetter, and Kristopher Martin went to Bernitt’s
farm to do a “knock and talk” investigation. The purpose of
this “knock and talk” was to gather more information. When
the police officers arrived, Officer Hoell immediately saw
what amounted to 110 marijuana plants growing two to
eight feet tall. The plants were adjacent to Bernitt’s home
and readily visible from the residence’s driveway.
When the police officers asked Bernitt about the plants,
Bernitt replied that the marijuana grew wild. The police of-
ficers arrested Bernitt. The police officers did not Mirandize
Bernitt. They did, however, handcuff Bernitt and place him
in the rear of a marked police car. Officer Hoell testified
that he asked Bernitt for his consent to search his house
and garage. Bernitt replied by asking if he could come along
during the search. After the police officers denied his
request, Bernitt stated, “Go ahead and search, you’re not
going to find anything in the residence anyways.” Bernitt
testified that he never gave permission for the police to
search his unattached garage.
The officers searched Bernitt’s residence and found two
potted plants in his kitchen. These plants were later deter-
mined to be marijuana. When the police officers asked
Bernitt about the potted plants, Bernitt replied that they
were given to him by a friend. Bernitt stated that these
plants were “palm trees.” The officers also searched the
basement of Bernitt’s home. The officers then searched
No. 03-3065 3
Bernitt’s unattached garage. In the garage, the officers
found a refrigerator containing two gallon-size ziplock bags
of wet plant material. This material was later determined
to be marijuana. On a table next to the refrigerator, the
officers found and seized a weighing scale. The scale had
marijuana residue on it. In addition, the officers seized 248
marijuana plants from the garden behind Bernitt’s home.
The garden appeared to be well-tended. The marijuana
plants were planted in rows and thriving.
On August 2, 2002, the police received an anonymous let-
ter. The letter informed them that they had missed some
marijuana at Bernitt’s home during their July search. In
response to the anonymous letter, Officer Hoell conducted
a reconnaissance flight over Bernitt’s property, where he
spotted additional suspected marijuana plants.
On September 5, 2002, Officer Hoell went to Bernitt’s
home to conduct a follow-up investigation. Officer Hoell
found ten more marijuana plants growing in the same gar-
den from which the 248 plants were previously seized. He
also found a mowed path from the back garden to a wooded
section of Bernitt’s property. In the wooded section, Officer
Hoell found an additional 281 marijuana plants, some eight
feet tall.
A grand jury in the Eastern District of Wisconsin re-
turned a three-count indictment against Bernitt: two counts
of manufacturing marijuana, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B), and one count of possessing mar-
ijuana with intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C). The indictment stated that
Bernitt’s offenses involved 100 or more marijuana plants.
The indictment also included a forfeiture provision to seize
Bernitt’s real property under 21 U.S.C. § 853. Bernitt filed
a motion to suppress this physical evidence, which the
district court, adopting the magistrate’s recommendation,
denied. Following a two-day jury trial, Bernitt was found
4 No. 03-3065
guilty on all counts. In addition, the jury issued a special
verdict finding beyond a reasonable doubt that the offenses
involved 100 or more marijuana plants, as alleged in the
indictment.
Bernitt waived jury consideration of the forfeiture issue.
As such, the district court agreed to decide the forfeiture
matter based upon the trial record and the parties’ written
submissions. Bernitt then filed a Motion for Judgment of
Acquittal, under Federal Rule of Criminal Procedure 29,
which the district court denied. The district court granted
the government’s motion for a preliminary order of forfei-
ture. The district court also issued an order forfeiting
Bernitt’s interest in the real property on which the mari-
juana plants were found. The district court then sentenced
Bernitt to three terms of sixty months, to be served concur-
rently. Finally, the district court ordered Bernitt to pay a
$10,000 fine, and special assessments of $300. Bernitt
submitted a timely appeal.
II. Analysis
A. Search of Bernitt’s Home and Garage
The evidence Bernitt seeks to suppress are as follows: (1)
two potted marijuana plants taken from his kitchen; (2) two
ziplock bags of marijuana; and (3) a scale. The two ziplock
bags of marijuana and the scale were both seized from his
unattached garage. On appeal from a denial of a motion to
suppress, we review the district court’s factual findings for
clear error and questions of law de novo. United States v.
Lemmons, 282 F.3d 920, 923-24 (7th Cir. 2002).
It is well-settled under the Fourth and Fourteenth
Amendments that warrantless searches are per se unrea-
sonable, “subject only to a few specifically established and
well-delineated exceptions.” Katz v. United States, 389 U.S.
347, 357 (1967). One such exception is search pursuant to
No. 03-3065 5
consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
However, the consent to a police search must be voluntary.
Id. at 222. Voluntary means the “consent was not the product
of duress or coercion, express or implied,” which must be
determined by looking at the “totality of all the circum-
stances.” Id. at 227. The government must prove this by a
preponderance of the evidence. United States v. Saadeh, 61
F.3d 510, 517 (7th Cir. 1995). To determine whether the con-
sent was voluntary or not, this court may consider factors
including: “age, education, and intelligence of the defendant;
advisement of his rights; how long he was detained prior to
the consent; repeated requests for consent; physical co-
ercion; and whether he was in custody.” United States v.
LaGrone, 43 F.3d 332, 334 (7th Cir. 1994); see also United
States v. Strache, 202 F.3d 980, 985 (7th Cir. 2000) (noting
that presence or absence of any one of the factors listed in
LaGrone is not controlling).
While this case presents some facts which question the
voluntariness of Bernitt’s consent, reviewing all the facts
together, we conclude the consent was valid. It is troubling
that Bernitt had been arrested, handcuffed in the back of a
police squad car, and not advised of his rights before he
gave his consent. However, several facts mitigate our con-
cern. The district court found that Bernitt was an intelligent,
articulate adult man, and we have no basis to conclude that
these factual findings were clearly erroneous. Furthermore,
“the police did not badger [the defendant] for information or
consent, nor physically abuse or pressure him.” Strache, 202
F.3d at 986. In addition, the district court found that
Bernitt was in custody for only three to four minutes before
the police solicited his consent. See id. (finding defendant’s
consent voluntary even when defendant was in custody for
approximately twenty minutes and not advised of his
rights). In any case, “the fact of custody alone has never
been enough in itself to demonstrate a coerced confession or
consent to search.” United States v. Watson, 423 U.S. 411,
6 No. 03-3065
424 (1976). In sum, we agree with the district court’s
conclusion that Bernitt voluntarily consented to the search
of his home. The potted plants found in his kitchen, there-
fore, were properly submitted into evidence.
The question remains of whether the scope of Bernitt’s
consent included his unattached garage. Bernitt contends
that even if we conclude his consent was voluntary, we
should find that his consent only permitted search of his
“residence.” Bernitt contends that he limited the scope of
the search only to his home when he said, “Go ahead and
search, you’re not going to find anything in the residence
anyways.” On the other hand, at the suppression hearing,
Officers Hoell and Vetter testified that Officer Hoell asked
Bernitt for permission to search both his residence and
garage.
“A suspect may of course delimit as he chooses the scope
of the search to which he consents.” Florida v. Jimeno, 500
U.S. 248, 252 (1991). Moreover, while the officers testified
at the suppression hearing that consenting to the search of
Bernitt’s “residence” included, in their minds, search of
Bernitt’s garage, the proper inquiry under the Fourth
Amendment is that of objective reasonableness. In other
words, “what would the typical reasonable person have
understood by the exchange between the officer and the sus-
pect?” Id. at 251; see also Lemmons, 282 F.3d at 924 (“The
scope of consent is defined by gauging, under the totality of
the circumstances, what a typical reasonable person would
have understood it to be.” (internal citations omitted)).
Bernitt suggests that the term “residence” is narrow, and
does not include an unattached garage. However, even if
the word “residence” cannot be reasonably construed as en-
compassing an unattached garage, determination of the
scope of consent in this case turns on the district court’s
findings of fact. Here, we have a situation in which there is
conflicting testimony. Bernitt said he only consented to the
No. 03-3065 7
search of his home, if anything. Officers Hoell and Vetter
both testified that Officer Hoell asked for and received
permission to search both Bernitt’s residence and garage. In
support of his position, Bernitt points to Officer Hoell’s
written account which states:
I asked MR. BERNITT if he had any illegal sub-
stances or paraphernalia within the residence.
BERNITT advised that he did not. I asked BERNITT
if I could have consent to search his residence for
any further marijuana growth. BERNITT advised
that I did have permission to search his property
further. . . . Further search of the property led us
into the garage area. . . .
The magistrate judge who presided over the suppression
hearing credited the officers’ testimony over that of Bernitt.
The magistrate judge found Bernitt’s testimony concerning
the search of his garage “unworthy of belief.” This finding,
including the magistrate’s credibility determinations, were
adopted by the district court. On appellate review of a dis-
trict court’s ruling on a motion to suppress, “[w]e review all
findings of historical fact and credibility determinations
under the clear error standard.” United States v. May, 214
F.3d 900, 905 (7th Cir. 2000). Under this standard, we can-
not accept Bernitt’s argument to give more weight to Officer
Hoell’s written report over the two officers’ testimony at the
suppression hearing. Nor do we find that it was clear error
for the district court to credit the officers’ testimony
concerning the scope of the consent given. Officer Vetter and
Hoell’s testimony can be construed as consistent with the
written report. Accordingly, we conclude that the district
court correctly denied Bernitt’s motion to suppress the
evidence seized in his garage.
B. Sufficiency of the Evidence
When reviewing a conviction for sufficiency of the evi-
dence, our “threshold inquiry is whether ‘after viewing the
8 No. 03-3065
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’ ” United States v.
Curtis, 324 F.3d 501, 505 (7th Cir. 2003) (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)). This court will
overturn a jury verdict on a challenge to the sufficiency of
the evidence only if after viewing the evidence in the light
most favorable to the government “. . . the record is devoid
of evidence from which a reasonable jury could find guilt
beyond a reasonable doubt.” Id.; see also United States v.
Brown, 328 F.3d 352, 355 (7th Cir. 2003). In so doing, this
court does not weigh evidence or make credibility determi-
nations. Brown, 328 F.3d at 355. Bernitt has not met this
high burden for the reasons stated below.
1. Count One: Manufacturing Marijuana—Seized in
July 2002
Count One of the indictment charges Bernitt with manu-
facturing marijuana in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(B). The elements of this offense consist of the
following: (1) that the defendant manufactured a controlled
substance; (2) that the defendant did so knowingly or
intentionally; and (3) that the defendant knew that the
substance he manufactured was a controlled substance. 21
U.S.C. § 841(a)(1).1
1
As the indictment specifically alleged, Bernitt’s offenses
involved 100 or more marijuana plants. As the jury issued a
special verdict finding Bernitt guilty, he is subject to the penalties
under 21 U.S.C. § 841(b)(1)(B)(vii). That subsection provides in
pertinent part: “In the case of a violation of subsection (a) of this
section involving . . . 100 kilograms or more of a mixture or
substance containing a detectable amount of marijuana, or 100 or
more marijuana plants regardless of weight. . . such person shall
(continued...)
No. 03-3065 9
Bernitt claims that the evidence is insufficient to show
that he “manufactured” marijuana. Bernitt alleges that the
plants were growing wild on his property. However, several
facts belie Bernitt’s asserted defense. The definition of man-
ufacturing includes the “production” of a substance. 21
U.S.C. § 802(15). Production is in turn defined as “planting,
cultivation, growing, or harvesting of a controlled sub-
stance.” 21 U.S.C. § 802(22). At trial, Officer Hoell testified
that there were 110 marijuana plants ranging in height
from two to eight feet growing alongside Bernitt’s house.
According to Officer Hoell, the plants “seemed very healthy
and lush.” Officer Hoell also testified that he found 248
marijuana plants in Bernitt’s garden behind his home. In
Officer Hoell’s estimation, these plants were well-tended.
Half of the marijuana patches were weeded and the mar-
ijuana plants were green, lush, and growing thick, even
though the grass surrounding the plants was brown and
dry. Moreover, Officer Hoell found the marijuana plants in
the garden growing in rows. Finally, Bernitt also admitted
at trial that he picked leaves from the plants growing
alongside his house to make “herbal tea” to ease the taking
of his medication. Viewing these facts in the light most
favorable to the government, they together evince cultivat-
ing and harvesting of marijuana. We conclude there is suf-
ficient evidence of “manufacturing” marijuana to sustain
the jury’s verdict.
2. Count Two: Possessing Marijuana with Intent to
Deliver
Bernitt claims that there was no evidence before the jury
establishing that he made any sales or deliveries of mari-
1
(...continued)
be sentenced to a term of imprisonment which may not be less
than 5 years and not more than 40 years . . . a fine not to exceed
the greater of that authorized in accordance with the provisions
of Title 18, or $2,000,000 if the defendant is an individual.”
10 No. 03-3065
juana to anyone. To prove that the defendant possessed
marijuana with the intent to deliver, the prosecution had to
prove beyond a reasonable doubt the following: (1) that the
defendant knowingly or intentionally possessed marijuana;
(2) that the defendant possessed marijuana with the intent
to distribute it; and (3) that the defendant knew the
substance he possessed and sought to distribute was a
controlled substance. 21 U.S.C. § 841(a)(1); see also United
States v. Starks, 309 F.3d 1017, 1022 (7th Cir. 2002).
While there appears to have been no direct evidence pre-
sented which showed that Bernitt processed the drug for
commercial purposes or delivered it to anyone, this circuit’s
precedent holds that the quantity and packaging of drugs,
as well as the presence of drug paraphernalia, can be
sufficient to support the inference of an intent to distribute.
Hence, this evidence can support a conviction for possession
with intent to distribute under 21 U.S.C. § 841(a). See United
States v. Folks, 236 F.3d 384, 390-92 (7th Cir. 2001) (finding
that plastic bags and a scale covered with drug residue
constituted evidence to support conviction for possession
with intent to distribute a controlled susbstance); United
States v. Billops, 43 F.3d 281, 285 n.5 (7th Cir. 1994) (“A
conviction for possession with intent to distribute under
§ 841(a) can be supported by the possession of a quantity of
drugs larger than needed for personal use.” (internal
quotations omitted)) and cases cited therein; United States
v. Garrett, 903 F.2d 1105, 1113 & n.10 (7th Cir. 1990)
(collecting cases which regard packaging of drugs as
supporting inference of intent to distribute).
The government presented the following evidence: (1) the
presence of over 300 healthy, well-tended marijuana plants
on Bernitt’s property; (2) a weighing scale with marijuana
residue; and (3) two ziplock bags of the drugs evenly mea-
sured at approximately 138 grams each, stored in Bernitt’s
refrigerator. All of this evidence, viewed in the govern-
ment’s favor, supports the jury’s finding of guilt on this
count.
No. 03-3065 11
3. Count Three: Manufacturing Marijuana—Seized in
September 2002
The basis for this count lies in the 281 marijuana plants
the police found in the wooded area on Bernitt’s property on
September 5, 2002. As the district court noted, the evidence
presented at trial showed a mowed path on Bernitt’s
property from his back garden to the wooded area; a foot-
path from the mowed area to the plants; that the plants
were great in number (281) and in size (some over 8 feet
tall); and that they were growing together in a bunch,
rather than scattered the way in which wild marijuana
plants tend to grow, according to Officer Hoell’s trial testi-
mony. Applying the standard for review of sufficiency of the
evidence challenges discussed above, a rational jury could
have found Bernitt guilty on this count on these facts.
C. Forfeiture of Bernitt’s Real Property
Bernitt contends that the district court’s order to forfeit
his thirty-acre property subjected him to an excessive fine
under the Eighth Amendment. The district court rejected
Bernitt’s Eighth Amendment argument. We review a dis-
trict court’s excessiveness determination de novo. United
States v. Bajakajian, 524 U.S. 321, 336 (1998).
Title 21 U.S.C § 853(a) states that any person convicted
for a violation of 21 U.S.C. § 841(a)(1) “shall forfeit to the
United States . . . any of the person’s property used, or
intended to be used, in any manner or part, to commit, or to
facilitate the commission of, such violation.” As forfeiture
under § 853(a) is punitive, the Eighth Amendment limits its
application. See Libretti v. United States, 516 U.S. 29, 39
(1995). A punitive forfeiture violates the Eighth Amendment’s
excessive fines clause if it is “grossly disproportional to the
gravity of a defendant’s offense” or otherwise does not bear
“some relationship to the gravity of the offense it is de-
signed to punish.” Bajakajian, 524 U.S. at 334. Moreover,
12 No. 03-3065
“[i]n considering an offense’s gravity, the other penalties
that the Legislature has authorized are certainly relevant
evidence,” id. at 339 n.14; after all, “judgments about the
appropriate punishment for an offense belong in the first
instance to the legislature.” Id. at 336.
Congress has construed Bernitt’s offenses as quite grave.
For each count of manufacturing 100 or more marijuana
plants, Congress imposes 5 to 40 years of imprisonment and
a maximum fine of $2 million. For possession with intent to
distribute, prison time can be up to 20 years plus a maxi-
mum fine of $1 million. Bernitt’s penalty of $115,500 is
significantly lower than the total penalty that the district
court could have imposed.2 Given the potential punishment
the district court could have imposed on Bernitt, the gov-
ernment’s seizure of Bernitt’s property valued at $115,500
is not grossly disproportionate to the gravity of the harm
the jury found Bernitt caused. See United States v. Vriner,
921 F.2d 710, 714 (7th Cir. 1991) (holding that forfeiture
under mandatory language of § 853(a) of property on which
warehouses used to store marijuana were located did not
violate the Eighth Amendment when defendant failed to
show “that the total penalty imposed [on him] was dispro-
portionate to the offenses for which he was convicted”).
III. Conclusion
For the reasons stated above, we AFFIRM.
2
The total amount that the district court could have imposed for
Bernitt’s three counts amounts to $5 million.
No. 03-3065 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-15-04