# Petition for Writ of Certiorari — Godwin v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 952

## Text

FILED
APR 26 1993

Otc OF THE CLERK

In the Supreme Court of the United States
OcTOBER TERM, 1992

ARLENE ELIZABETH GODWIN, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

THOMAS MARTELE GOGGANS
P.O. Box 1307
Montgomery, AL 36101
(205) 834-2511

Counsel for Petitioner
Arlene Elizabeth Godwin

i

QUESTIONS PRESENTED+

1. Whether U.S.S.G.2D1.1 which
provides that each marijuana plant is
the equivalent of one kilogram of
marijuana whenever 50 or more plants are
involved violates due process and equal
protection provisions of the Fifth
Amendment to the United States
Constitution because there is no
rational basis for selection of fifty
plants as the trigger for enhanced
sentencing.

2. Whether in a prosecution under
21 U.S.C. 841(a) where there was
evidence of simple possession for

personal use the trial court's refusal

1 In the proceedings below, the
case was prosecuted by the United States
of America. The defendant-appellants
were Arlene Elizabeth Godwin, petitioner
herein, and Theron D. Godwin.

ii
to give a lesser included offense
instruction on simple possession of
marijuana ran afoul of Rule 3l({c),
F.R.Cr.P., the theory of defense and
lesser included offense instruction

requirements, and due process.

iii

TABLE OF CONTENTS

STOOLS GCE AUCHGOLIC LOB. ccccccscecssveveel¥
Citations to Opinions Below..... TEETER
WUE ABE ISCCION a cecccecseccccscsse TREC EET
Constitutional Provisions,

Statutes, and Sentencing Guidelines
EEE I re

Statement Of the CaSe.cccccccccccveceeed
A. Course of Prior Proceedings....4
B. Material FactS..ccsccccccccceeed
Reasons for Granting the Writ.........38

This case presents an important
federal sentencing issue of

whether there is a rational basis
for the fifty plant trigger of
U.S.S.G. 2D1.1 which has been
decided incorrectly by the

Eleventh Circuit and which

should be resolved by this

COU Es cc ccccccccccccccccesceseesedd

The decision of the Eleventh
Circuit in this case is in

conflict with F.R.Cr.P. 3l(c),
lesser included offense and

theory of defense instruction
requirements, and due

DEGSCOSB es cece cccccsecesecescsesece Sd]

jj eee eh ee ke ee eee ee ee eeesonee DD

iv

TABLE OF AUTHORITIES

Cases:

Guam v, Rosario, 625 F.2d 81l
ESE Cilia APTS) «6 ese 0604 hee ee 6 ee hee ee 50

Keeble v, United States,
Si2Z Usb. SES CEPTS) 6 6066 0 064 0608 6 6K 48

Schmuck v. United States,
S69 0.8. TOS CAISSON ccs 0dacces 48, 51, 54

Unj ;_ A -Moreno,
674 F.2G 14662 (Lith Cir. LOSS) «ccccass 48

United States v,. Belden,
957 F.2d 671 (9th Cir. 1992)...... 39, 41

United (e)
Products Co,, 304 U.S. 144 (1937).....49

United States v. Garcia-Duarte,
718 F.2d 42 (2d Cir. 1983) .c.ee2--50, 51

United States v. Holmes, 961 F.2d
599 (6th Gals LOSS) cceseces eeeeees 39, 42

United States v. Lee, 957 F.2d
778 (10th CEaf od Ee) 6066068040060 0 6SRS 41

United States y, LoRusso, 695 F.2d 45
(2d Cir. 1982), cert. denied,
460 Uews 18070 (2OSS) cos eeeeees e*ee#eeee#*ee#ee## 50

United States v. Osburn, 955 F.2d
1500 (llth Cir. 1992) ..ccccccceees39, 42

United States ve. Smith, 961 F.2d
1389 (8th Cats REOEl 60 6u 60060044448 Se 41

V

United States y, Underwood,

970 F.2d 1336 (4th Cir. 1992)..... 40, 41
United States v,. Webb, 945 F.2d

967 (7th Cir. 1991) wc ccccccecceces 39, 41
Statutes:

21 U.S.C. 841(a) (1).....-. ope 58
21 U.S.C. 841(b) (1) (A) (vii) .... ee eeeee 49
21 U.S.C. G41 (Bb) (1) (D) ceccnccssesesscs 42
21 U.S.C. 844(a) cccccccccccccecccccece 50
Pub. L. 99-570, Section 1808

(a) (1) (C) - ocean WEETTCTCTT TCC CTT 43
Pub. L. 100-698, Section 6479 (3)..... 43
$s ncing Guj ines;

U.8.5.6. ADL il cosncesecsesncesevesnses 38
Court Rules:

Rule 3l(c) of the Federal Rules

Of Criminal Procedure....seeeeeeee eee e4/
Miscellaneous:

HR Rep. No. 99-845, Pt. 1 at 12, 17...45

pony ee Analysis of Judiciary
Iss H.R 2
ey Cong. Rec. S 17368, S 17368
(Daily ed. Nov. 10, 1988)
(comments of Sen. Biden) .ccscccscsesesch4

No. 92-

IN THE SUPREME COURT OF THE
UNITED STATES
OCTOBER TERM, 1992

mm aaa a ae = SS SS

ARLENE ELIZABETH GODWIN,
Petitioner,
Ve

UNITED STATES OF AMERICA,

Respondent.

— a ae a ee

riceestiemeetineenticestieensntitcessnticnssntitetitceettitese i Ie Te I

PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

ee oe _

Petitioner, ARLENE ELIZABETH
GODWIN, respectfully prays that a writ
of certiorari issue to review the
judgment of the United States Court of
Appeals for the Eleventh Circuit in this

case.

2

CITATIONS TO OPINIONS BELOW

The opinion of the United States
Court of Appeals for the Eleventh
Circuit, which in not reported, is
affixed as "Appendix A." The opinion of
the United States District Court for the
Northern District of Florida on
sentencing issues, which is not
reported, is affixed as "Appendix B."

JURISDICTION

The judgment of the United States
Court of Appeals for the Eleventh
Circuit was entered on January 25, 1993.
Jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES, AND
SENTENCING GUIDELINES INVOLVED

This case involves:

The Fifth Amendment to the
Constitution of the United States which
provides: "No person shall be...deprived
of life, liberty or property, without
due process of law...."

21 U.S.C. 841(a) which provides

3
that "... it shall be unlawful for any
person knowingly or intentionally -- (1)
to manufacture ... or possess with |
intent to distribute ... a controlled
substance ...."

21 U.S.C. 841(b) (1) (A) (vii) which
provides in pertinent part that an
individual convicted under 21 U.S.C.
841 (a) "shall be sentenced to a term of
imprisonment which may be not less than

1@ years if the case involved 1,900 or

more marijuana plants."

21 U.S.C. 844, which provides in
pertient part: "It shall be unlawful for
any person knowingly or intentionally to
possess a controlled substance....”"

United States Sentencing Guideline
2D 1.1, which provides:

In the case of an offense
involving marihuana plants, if
the offense involved (a) 5@ or
more marihuana plants, treat
each plant as equivalent to l
KG if marihuana; (B) fewer
than 58 marijuana plants,
treat each plant as equivalent
to 108 G of marijuana.
Provided, however, that if the

4

actual weight of the marijuana
is greater, use the actual
weight of the marijuana.

STATEMENT OF THE CASE

A. Course of Proceedings

Petitioner Arlene Elizabeth Godwin
was charged, along with her ex-brother-
in-law, Theron D. ("T. D.") Godwin, in a
three count indictment in the Northern
District of Florida. Count I charged
that they had conspired to knowingly and
intentionally manufacture more than
1,000 marijuana plants or possess with
intent to distribute marijuana. Count
II charged that they had knowingly and
intentionally manufactured more than
1,000 marijuana plants or possessed with
intent to distribute marijuana. Count
III charged that they had used a firearm
during a drug-trafficking offense. (Rl-
1). The case was tried before a jury in
May of 1991. Both were found guilty

under all three counts. On October 3l,

1991, Arlene Godwin was sentenced to 151

tacit ean

>

months on counts I and II to be served
concurrently and 6@ months on Count III
to be served consecutively. The United
States Court of Appeals for the Eleventh

Circuit affirmed on January 25, 1993.

B. Material Facts

On February 8, 1991, David Ross, a
pilot and investigator for the Santa
Rosa County, Florida Sheriff's
Department, spotted three marijuana seed
beds located on land owned by the
Champion Paper Company.? (R2-72-2, 8).
He directed deputies on the ground below
to the seed beds. (R2-72-7).

Ross observed hunting roads and
dirt roads in the Champion Paper Company
area. (R2-72-28). The closest

residence to the seed beds was T. D.

Godwin's which was approximately two

1 As a pilot, Ross had discovered
large quantities of marijuana growing
all over Santa Rosa County, a county
covering more than 1,868 square miles.

: '

hundred yards away. (R2-72-8). Ross
also saw four to ten other houses in the
general area. (R2-72-29). Neither he
nor anyone else ever saw T. D. Godwin or
anyone else going back and forth from
the residence to the seed beds. (R2-72-
32).

When deputies arrived at the seed
beds, they found three trenches,
approximately 6 feet by 2 or 3 feet.
(R2-72-48). One was covered by a
camouflage painted metal screen and was
full of trays containing soil and
marijuana seedlings. (R2-72-41). The
other two were partially full, with
camouflage screen off to the side. (R2-
72-41).

The deputies found mothballs in the
trenches around the trays and purplish
pesticide spread throughout the beds.
(R2-72-44 through 45). They recovered
sticks, pieces of white PVC pipe, and

metal ties bent in "U" shapes from the

-
beds. (R2-72-47, 48, 50).
At approximately 11:00 a.m. or
11:05 a.m., the deputies drove to T. D.
Godwin's residence. (R2-72-55). |
According the deputy in charge, they
went there to investigate because it was
the closest house. (R2-76-93, 114).
While one of the deputies spoke to T. D.
Godwin, two others observed several
rolis of brown and green painted wire
screen rolled up in the entrance of an
outbuilding. (R2-72-56). T. D. Godwin
refused to consent to a search and asked
the deputies to leave. The deputies
left and obtained a state court search
warrant.
Before executing the search
warrant, the deputies counted the
individual the marijuana seedlings for a

total of 10,106 seedlings. (R2-72-80-

1). The seedlings were contained in

During this encounter, Arlene
Godwin was raking leaves and such in the

8
thirty-four trays. (R2-72-82). Small
white tabs with initials, such as "AFG,"
were inside these trays. (R2-72-89
through 9@).

The seed beds themselves were in an
area with tall pine trees, ranging in
height from 20 feet to 30 feet,>
approximately 580 to 1800 hundred yards
from the road leading to the Champion
Paper plant. (R2-72-91 through 92).
This dirt road had some four-wheeler
tracks on it. (R2-72-65). T. D.
Godwin's house was located at a point
where several dirt roads converged.
(R2-76-763). There were no trails
between T. D. Godwin's residence and the
seed beds. (R2-76-46). It was
impossible to see any residence,
including T. D. Godwin's, from the seed
beds. (R2-76-47).

Around 5:58 p.m. on February 8,

The prosecutor described the
location as “in the middle of the
woods." (R-2-76-47).

9
1991, numerous deputies executed the
search warrant. (R2-72-99). Both T. D.
Godwin and Arlene Godwin were inside the
residence when the warrant was executed.
Arlene Godwin was cooking in the kitchen
when the deputies arrived to conduct the
search. (R2-75-832) .- $1,400.08 in cash
was taken from her. (R2-75-834).
$3,662.28 in cash was taken from T. D.
Godwin. (R2-72-131).° A number of
guns were seized from the premises.
Deputies seized five guns from the hall
closet: a Remington 1108 12-gauge used

for turkey hunting, which was loaded

’ Arlene Godwin testified at a
Suppression hearing that she had stayed
overnight on occasion and that she had
gone over that day to borrow the washing
machine and cook dinner. (R2-76-79).
She also testified at the suppression
hearing that she had personal items
stored at the residence. (R2-76-83).

> $1,652.38 of this amount came

from T. D. Godwin's wallet, along with a
purchase order for John Deere equipment
from Beard Equipment Company in the name
of Jack Gordon and a receipt for $31.55
for some Krylon spray paint. (R2-72-
133).

1”
(without ammunition in the firing
Chamber) (R2-72-137, 141, 157); a loaded
shotgun (P2-72-137, 141 through 142, 159
through 16@); two unloaded rifles (PR2-
72-138, 142 through 143); and a loaded
rifle normally used for deer hunting.
(R2-72-143, 161). Deputies got six
other guns from inside the house: from
the living room, a loaded shotgun (P2-
72-138, 143); from under the bed in the
master bedroom, another loaded shotgun
(R2-72-138, 143, 161); from inside the
front entrance, a loaded shotgun
(ammunition not in the firing chamber),
of a type normally used for hunting (P2-
72-138, 143, 158 through 159); from a
different bedroom, described as bedroom
number one during the trial, a loaded
shotgun, contained within a case (R2-72-
138, 143); from an end table in the
living room a loaded, semi-automatic

pistol, contained within its case (R2-

72-139, 144); and from a storage roon,

ii
an unloaded, squirrel hunting rifle (R2-
72-144, 159 through 1698).

Outside the residence in a green
pick-up truck titled to Arlene Godwin
deputies found a box for a Titan pistol
(R2-73-330, 336). Deputies seized a .38
Special, containing four shells from T.
D. Godwin's brown pick-up truck. (R2-73-
383, 304). Deputies seized a .32 pistol
loaded with five shells from under the
driver's seat of a 1979 Lincoln. (R2-
73-304).

No automatic weapons were seized.
(R2-72-163). No serial numbers were
filed off any of the firearms (R2-72-
165). No unusual ammunition was seized.
(R2-72--166). In the words of the deputy
who seized most of the guns, the guns
were the “types that you would expect to
find in anybody's home that does a lot
of hunting...or collects firearms."

In addition to seizing guns, the

12
deputies seized a large garbage bag in

the hallway, containing ten bags

containing fifteen individual white
bags, containing eight zip-lock bags of
marijuana weighing approximately one
Ounce. (R2-72-175 through 177). A
Similar bag was seized containing
thirteen individual white bags,

containing 8 one-ounce zip-lock bags of

marijuana. (R2-72-177).

In a hall closet, they found a bag
containing approximately eighteen pounds
of marijuana seeds and clear baggies of
marijuana. (R2-72-178 through 179).
They also seized white plastic tabs with
writing on them such as "AFG 1987" (R2-
72-191). One tab contained writing
Stating "AFG, 1989, Arlene's." (R2-72-
191).

From bedroom number one,° they

seized a smoking bong and pipe (R2-72-

° Testimony indicated that Arlene
Godwin admitted she had stayed in this
room. (R2-73-242).

13
211 through 213), two match boxes and a
film container holding marijuana
residue, and the remains of a marijuana
Cigarette. (R2-73-214). They also
seized Nintendo games and ladies'
toiletries. (R2-73-217). In the
closet, they found seven sets of
florescent lights, with twin tubes and
long wires attached, and women's
Clothing. (R2-73-218 through 220).
They also located some children's
clothes and children's books in this
same room. (R2-73-224).

From the utility room, they seized
two white bags, one with eleven clear
baggies of marijuana and the other with
Six clear baggies of marijuana. (R2-73-
246). Another bag contained marker
pens, prescription bottles, plastic

bags, scissors and marijuana. (R2-73-

248). One of the bags contained

marijuana, marijuana cigarettes, and

seeds. Another bag contained three

14
prescription bottles bearing T. D.
Godwin's name. (R2-73-249). Another
contained a black marking pen and tabs
with "AFG" written on them. (R2-73-
249). The deputies discovered triple
beam scales on the floor along with
hand-rolled cigarettes, double-wide
paper, rolling machines, zip-lock bags
and a band-aid. (R2-73-251). They
found ten rolls of weed block (black
plastic shields) on top of a styrofoam
cooler. (R2-73-254). They also
discovered ten empty garbage bags,
debris from a vacuum cleaner, a
camouflage tarp, a Platex glove box, and
cut hair in a bag. (R2-73-255 through
258).

In the kitchen, they located a
thermal jug containing mothballs. Ina
cabinet above the stove, they found
forty-nine boxes of bags, lose bags,

five rolls of string, twine, binoculars,

and a tape recorder. (R2-73-260).

15

In the living room, they found a
rolled marijuana cigarette in an ashtray
on a coffee table. (R2-73-275). They
also seized scales from the top of a
living room mantel. (R2-73-276).

From a hallway gun cabinet,
deputies seized a book entitled "How to
Avoid Electronic Eavesdropping and
Privacy Invasion." (R2-73-284). They
also found a box containing a debugging
device. (R2-73-284). The device was
not connected to a telephone. (R2-73-
286).

In another hall closet, officers
seized a radio and two battery chargers.
They seized a second radio and two sets
of headsets from a closet in a Spare
bedroom. (R2-73-3080, 302). They also
discovered batteries, binoculars, and
belts. (R2-73-303). They learned that
the two radios did not operate together.
(R2-73-308).

From the 1998 green pick-up truck

i

16
titled to Arlene Godwin, deputies seized
a zip-lock bag, string, notes reflecting
testimony taken at the drug trial of a
Buddy Brunson, the box for a Titan .25
pistol, a roll of string, mothballs, a
milk jug with purple material, a bow
Saw, a cooler containing Miracle-Gro
fertilizer bags, two pieces of PVC pipe,
a zip-lock bag containing twine, wire,
ties and bags, and a brown paper bags
with multiple plastic bags and two rolls
of twine. (R2-73-338 through 341).

From the utility building, the
deputies seized 34, 58 pound bags of
Miracle-Gro; 4, 18 pound bags of
Miracle-Gro; 4 sets of 3 milk jugs tied
together (with some purple residue);
rolls of camouflage-painted screen; bent
metal rods; a bag with PVC pipe
sections; metal rods; gloves; mothballs;
several cans of spray paint; one hundred

plant trays; some used trays; five sets

of Easy-Gro Greenhouse; two sheets of

17
safety glazing; three balls of twine;
two paint cans; wire screen and
insecticide. (R2-73-349 through 358).
They also discovered 27 bags of chemical
hydrated lime; 18, 5@ pound bags of
Slag; two four wheelers; and seed
receipts for 708 pounds of Chufa, a seed
planted for turkey hunting. (R2-73-362

through 371). According to the deputy

who seized these items, all of them --

from the bags of Miracle-Gro to the bags

of slag -- could be used for purposes

other than the cultivation of marijuana.

(R2-73-374).
In a carport, the deputies

discovered a tractor, contained inside a

trailer. (R2-73-360). The tractor had

a tiller hooked to the back. (R2-73-

361).
The day after the initial search

the deputies returned and followed some

tracks from across the dirt road in

front of T. D. Godwin's residence and

Diccsenniieetinemnememnianinaind

18

discovered 4 additional trays of
marijuana under a screen held down by
two rocks approximately 159@ yards
northwest of T. D. Godwin's residence.
(R2-72-1807, 113). The marijuana was
contained in the same kind of trench
discovered the previous day. (R2-72-
198). It contained three hundred forty-
two plants. (R2-72-198). They also
found a silver screen woven together on
three sides, so that trays could be slid
into it. (R2-72-109, 113). The trays
containing these marijuana plants had
the initials "SK" on white tabs
contained in the trays. 14 trays were
in the woven camouflage screen. No
purple material, mothballs, or PVC pipe
was found at this site. (R2-72-124).

The deputies also discovered many
piles of what they suspected to be old
marijuana stalks across the street from

T. D. Godwin's residence. They also

found bags and twine laced between the

19
trees, leading them to believe the area
had been used to dry marijuana. (R2-73-
315).

The government called a number of
witnesses to explain the significance of
the seized materials. For example,
witnesses testified that two tractors
ostensibly sold to a “Jack Gordon,"
receipts for which were discovered
during the search, had in fact been sold
to T. D. Godwin on December 15, 1987 for
$6,782.11 in cash, and on June 22, 1989,
for $8,468.34 in cash. (R2-73-393
through 394).

Another witness testified that
Arlene Godwin had purchased two four-
wheelers from him, one on June 21, 1998
for $2,480.08 cash and one on August 25,
1998 for $2,538.08 cash. He also
testified that T. D. Godwin purchased a
four-wheeler from him on August 22,
1998, for $2,730.08 cash and that T. D.

Godwin requested to give him the cash in

20

private rather than at the business
counter. (R2-73-482 through 405).

Automobile dealer representatives
testified that Arlene Godwin purchased
her pick-up truck for $18,394.20. (R2-
74-423). During the course of the
purchase, she asked how much cash she
could pay without triggering the
government reporting requirement and was
advised that anything less than
$10,008.88 would not have to be
reported. (R2-74-422). She made two
cash payments, totaling $9,999.29 and
paid the remainder by check.’ (R2-74-
418, 424).

There was also evidence that T. D.
Godwin had purchased his 1989 pick-up

for $17,798.09 by trading in a 1986

7 The check was written from the
account of J & K Trucking, a trucking
company owned in part by Arlene Godwin's
sister. (R2-73-448). Arlene Godwin
borrowed $4,208.08 and deposited the
other $4,195.88@ into her sister's
account, in order to write the check for
$8,395.00. (R2-73-439-441).

21
pick-up and paying the difference --
$9,999.00 in cash. (R2-74-429 through
430). TT. D. Godwin used his real name
but indicated to the salesman he could
only spend under $18,900.08, including
his trade. (R2-74-432, 435).

A chemist testified that soil
Samples taken from each of the seed beds
contained an insecticide with an
ingredient known as carbofuran and that
carbofuran is an active ingredient in
Furidan -- the insecticide seized from
T. D. Godwin's shed. (R2-74-469 through
461). He testified that the mothballs
taken from T. D. Godwin's premises and
from the seed beds both contained
naphthalene. (R2-74-462). He further
testified that the black pen taken from
T. D. Godwin's residence was consistent
with "AFG" writing on tabs contained on
seed trays. (R2-74-465). He indicated
that though carbofuran is purple (R2-74-

418), the purple material taken from

_ eee

22
Arlene green pick-up truck in the milk
jug was grass seed. (R2-74-475, 477).

A hair fiber expert testified the
twine taken from the suspected drying
area was consistent with the twine
seized from T. D. Godwin's pick-up
truck. (R2-74-485 through 486).

A materials analysis expert
testified that four kinds of paint were
contained on the camouflage screens
seized from the seed beds. (R2-74-496).
More than ten kinds of paint were
contained in cans taken from T. D.
Godwin's outbuilding. (R2-74-496). The
green and brown paints taken from the
outbuilding matched the kinds of paint
found on the screens located at the seed
bed site spotted from the air. (R2-74-
502). The red paint found in the

outbuilding was consistent with paint

found in the bed site located the day

after the search of T. D. Godwin's

residence. (R2-74-502). A drab green

23
paint was contained on the camouflage
screens found at both sites, but no
paint to match them was found at the

residence or outbuilding. (R2-74-504).

A firearms and tool mark expert
testified that two pieces of PVC pipe
found in T. D. Godwin's outbuilding had
been joined to the PVC pipe found in the
seed bed site and that two other pieces
of PVC pipe taken from T. D. Godwin's
pick-up truck matched with pieces of PVC
pipe taken from the seed beds. (R2-74-
517).

A crime lab analyst, specializing
in drug chemistry, identified three
trace amounts found in the smoking bong
and pipe as marijuana. (R2-74-540). “He
also identified vacuum cleaner contents
as containing trace evidence of
marijuana and the small amounts of

matter taken from the match boxes and

film holder as containing marijuana.

24
(R2-74-548 through 541). He also
identified numerous other items found in
various baggies, cans, and cigarettes as
containing marijuana. (R2-74-538
through 541). He indicated that he was
unable to analyze the stalks and could
not say with certainty that they were
marijuana. (R2-74-554). He indicated
that the combined weight of all of the
seedlings seized -- more than 180,8066--
was less than one pound. (R2-74-548).
He testified that he did not know
whether the 18 pounds of seeds were
germinable. (R2-74-550).

A crime lab analyst specializing in
latent print analysis, testified that
one of the marijuana bags from the
utility room contained two fingerprints
of Arlene Godwin, and that baggies in
the hall closet bore the palm prints of
T. D. Godwin. (R2-74-558 through 559).

He also indicated that four sets of

prints found on other baggies were

23
neither those of Arlene Godwin nor T. D.
Godwin. (R2-74-568).

A fingerprint technician testified
that Arlene Godwin's prints had been
found on the two sheets of legal paper
containing notes on the trial of Buddy
Brunson. (R2-75-7098 through 701). He
also indicated prints of persons other
than Arlene Godwin were found on the
legal paper notes. (R2-75-704). He
testified that two prints had been
obtained from the marijuana trays, but
neither matched either Arlene Godwin, T.
D. Godwin or Buddy Brunson. (R2-75-
705).

The government found the
transmitter and recorder found at T. D.
Godwin's premises to be operational when
hooked to a telephone. (R2-75-721

through 722).

A deputy testified that he had
discovered plexiglass sheets in T. D.

Godwin's outbuilding and that he had

——_

26

discovered a seed bed, two to three
miles from T. D. Godwin's residence in
January of 1998, which contained a sheet
of plexiglass. (R2-75-735). He said
that plexiglass could be used like a
greenhouse in January to protect
marijuana from cold weather. (R2-75-
737) «

The government also called two
informants as witnesses. The first,

Jeffery Jackson testified® in return for

. Jackson said he met with T.D.
Godwin through Buddy Brunson. (R2-74-
576). He said that he had helped
Brunson and T.D. Godwin tie up marijuana
before an anticipated hurricane and that
he had helped T.D. Godwin harvest
marijuana. (R2-74-577 through 578).

He initially said that T.D. Godwin
grew marijuana seedlings approximately
one foot apart, but later said that he
planted seedlings five to six inches
apart. (R2-74-588). He testified that
T. D. Godwin usually had 72 trays and
claimed they tended the plants weekly,
Carrying fertilizer in jugs tied
together. (R2-74-581, 583).

Jackson said he helped T. D. Godwin
during 1985 and 1986 and quit in 1987.
(R2-74-585). According to Jackson, he
and T. D. Godwin tended it and Buddy
Brunson sold it. (R2-74-585). He said

27
immunity and a favorable letter, to be
written by the Assistant United States

Attorney to prosecution authorities

that he initially worked for $158.80-
250.08 per week, but later made partner
and made more than $190,000.08 per year.
(R2-74-586). He also contended that T.
D. Godwin said he buried his money.
(R2-74-587).

According to Jackson, it takes
three to four days to dry marijuana. He
testified that his house and Arlene
Godwin's house were used for the drying
process. (R2-74-589). He also claimed
that they used Arlene Godwin's house on
18 or 11 occasions, that she was allowed
to take and sell what she wanted and
that she received $25.88 per pound
though he never actually saw her receive
this money. (R2-74-589 through 591).

He also claimed that he and T.D.\ Godwin
packaged it, as did Arlene Godwin on
occasion. (R2-74-592).

According to Jackson, the average
yield of the marijuana they raised was
1-4 ounces per plant, sometimes 8 ounces
per plant, and infrequently 1 pound per
plant. (R2-74-598). He said a
camouflage screen was never used and
that chicken manure, rather than
Miracle-Gro, was used for fertilizer.
(R2-74-607). According to Jackson, T.D.
Godwin never planted marijuana near his
own house and, in his opinion, Godwin
would never do so. (R2-74-611). Jackson
said that they never used sophisticated
equipment or radios, (R2-74-611), and
that they never dug holes or trenches in
which to grow marijuana. (R2-74-612).

Deere

28
regarding numerous pending felony
battery charges for striking correction
officers and police officers. (R2-74-
575, 608). The second, Kenneth Lail,
caught with marijuana plants in Opp,
Alabama, agreed to "tell on his friends"

and receive five years of probation.>

Lail said he worked as a farmer
for T.D. Godwin's farm until T.D. Godwin
bankrupted. (R2-74-633). He said in
1984 he discovered that T.D. Godwin was
growing marijuana. (R2-74-634). Lail
said that T.D. Godwin gave him some
seeds, which he planted in his attic.
(R2-74-636). Lail said that T.D. Godwin
also bought fluorescent lights, which
they used to grow 4% to 58 plants in
Lail's attic, each up to l foot tall.
(R2-74-636 through 638). Lail said he
destroyed these plants, because the
other informant, Jeff Jackson, had
spread the word that he was growing it.
(R2-74-64@).

Lail also claimed he helped T.D.
Godwin bag some marijuana in the fall of
1987 or 1988. (R2-74-641). Lail said
that they filled 5 to 6 garbage bags
full of marijuana and that T.D. gave him
some "redbud" seed which he planted.
(R2-74-641 through 644).

Lail also claimed that in 1984 and
1985 he heard T. D. Godwin discuss
marijuana business with Buddy Brunson.
(R2-74-645). According to Lail, T.D.
Godwin said he made $380,008.08 one
year. (R2-74-645).

29
(R2-74-658 through 659).

In the defense case, T.D. Godwin
called his nephew and brother-in-law.
They testified that T.D. Godwin planted
seed plots to attract game for hunters
(R2-75-754, 787), and that he used his
tractor for this purpose. (R2-75-755).
They testified that T.D. Godwin, known
in Jay as "Buckshot" (R2-74-538), was an
avid hunter and gun collector who had a
reputation as "turkey hunter." (R2-75-
755, 786). They testified that the type
camouflage screen found in his utility
building is a kind typically used to
construct turkey and deer blinds. (R2-

75-776).

Lail claimed T.D. Godwin used
Furidan and Miracle-Gro as fertilizer.
(R2-74-647, 649). He testified that
T.D. Godwin said he received $2,000.90
per pound for Afghan marijuana and that
he had helped T. D. Godwin bag Redbud
and Blue Hawaiian marijuana. Lail
testified that the letters "AFG" were an
abbreviation for Afghan marijuana, and
the "RED" was for Redbud marijuana.
(R2-74-659).

30

T.D. Godwin's brother-in-law,
William Gandy, a school teacher,
identified a gun safety book taken from
T.D. Godwin's home, as belonging to T.D.
Godwin's nephew, Stephen, a fourth
grader at Jay Elementary School, the
school at which Mr. Gandy was a teacher.
(R2-75-885 through 806). Mr. Gandy
explained that the school regularly
teaches classes on gun safety because it
is common for people in the Jay, Florida
area both to carry pistols in their cars
for target and snake shooting and to own
shotguns and rifles for hunting. (R2-
75-791 through 792, 805 through 806).

They both indicated they hunted
regularly with T.D. Godwin. (R2-75-
754). Mr. Gandy identified various
rifles and shotguns as guns used
regularly by T.D. Godwin to hunt. (R2-
75-791). Both also identified numerous

pictures, showing the interior of T.D.

Godwin's residence and many items his

31
home reflecting his expertise and

10 (R2-75-

interest in turkey hunting.
798 through 806).

Arlene Godwin introduced testimony
disclosing that her child, Stephen Bush,
was driven to and from a residence
separate from that of T.D. Godwin from
October of 1998 through the first week
of January, 1991. (R2-75-828 through
830). Her sister testified that she was
living in a camper trailer at the site a
home she was having built and storing
her possessions in boxes in the carport
at T.D.Godwin's residence. (R2-75-836
through 838).

During the trial court's review of
its proposed jury charges, the defense
sought lesser-included instructions for

both counts I and II -- simple

10 During the government's case,

its own witnesses attested to having
seen the stuffed turkey and other game
exhibits, as well as papers describing
various hunting lodges, etc., connected
with hunting. (R2-72-164, R2-73-199).

32
possession and conspiracy to possess.
(R2-75-843 through 853). The trial
court recognized that there was evidence
of personal use, (R2-75-699, 847), but
Said that the addition of a lesser-
included instruction on simple
possession would render the charge and
verdict forms unduly confusing. (R2-75-
848). The trial court said that the
Charge and verdict form would be more
understandable if the jury were merely
given a choice of finding the guilty or
setting them free. (R2-75-849).
Accordingly, the trial court denied the
defense request to charge on the lesser-
included offense of simple possession,
Stating that it would add language
instructing the jury that, if the
government did not prove possession with
intent to distribute or manufacturing
more than 1,089 plants, the jury would
be required to find the defendants not

guilty. (R2-75-853). Citing both this

33

Court's decision in Beck v, Alabama, 447
U.S. 625 (1981) and the Eleventh

Circuit's decision in Wiggerfall v.
Jones, 918 F.2d 1544 (llth Cir. 1998),
defense counsel objected to the trial
court's refusal to give these lesser-
included charges. (R2-75-853).
However, the trial court said it would
not charge on simple possession, (R2-75-
855), and did not do so. (Court's
Exhibit 1 - Court's Instructions to the
Jury).

Arlene Godwin's trial counsel
argued to the jury:

The Judge is going to
tell you if you don't find
these people guilty of what
they're charged with, if you
don't believe they possessed
with intent to sell, if you
don't believe they were
cultivating marijuana, then
you got to find them not
guilty. Personally, I was in
this courtroom everyday, I'm
going to be amazed if you find
somebody not guilty of
everything in light of all
this. The government knows
that, too, because they know
you're going to be wrestling
with how you can justify

34

finding these people not
guilty, I really don't think
they proven this, what they
charged them with, but I have
no other choice, and I know
that somebody is involved in
this is a big marijuana
dealer, I can tell that,
although I'm not sure if
they've convicted them with
what they're charged with, how
can I justify letting them go?

It's not your fault.
You're not the ones that
formulated these charges and
it would be a good signal for
you to give the government
that they need to be a little
bit more circumspect about
what they're doing instead of
all this overkill....

(R2-75-985 through 906).

Possession with intent to
distribute means exactly that,
you've got to possess it with
intent to transfer to somebody
else. It hasn't been
suggested or even argued that
Arlene Godwin brought these
two plastic bags of pot to the
house. There's no proof in
her vehicle that she did.

(R2-75-915-916).

A special verdict form was
submitted to the jury and the jury
indicated its findings that Arlene

Godwin and T. D. Godwin were guilty of

|

35
everything. On October 31, 1991, the
trial court held an evidentiary hearing
to consider evidence regarding the
weight of the marijuana seized by law
enforcement officers. A crime lab
analyst for the Florida Department of
Law Enforcement testified that the
10,451 seedlings weighed approximately
1@ ounces, (R2-71-4 through 6), and that
the remainder of marijuana seized
weighed approximately 6.8 kilograms (15
pounds). (R2-71-7). He described the
seedlings as ranging from two to five
inches tall. (R2-71-10).

Dr. Mahmoud L. El Sohly testified
as an expert regarding the cultivation
of marijuana. (R2-71-12 through 13).
Dr. El Sohly related the results of two
federal studies he conducted regarding
the growth of marijuana -- one conducted
in 1985 and 1986, and another conducted
in 1998 and 1991. (R2-71-24, 46 through

47, 54 through 56). In both studies,

36

the marijuana plants were grown under
ideal conditions. (R2-71-37). Under
these ideal conditions, the average
yield of the marijuana plants in the
1985-1986 study was 1/4 kilogram (1/2
pound). (R2-71-37). Even under these
ideal conditions, 10% of the plants were
lost. (R2~-71-48@). In the 1998-1991
study, Dr. Fl Sohly changed the spacing
of the marijuana from three feet apart
(9 square feet) to approximately nine
feet apart (81 square feet). (R2-71-54
through 55). He found that the average
yield increased from 1/4 kilogram to
over 1 kilogram (2.2 pounds). (R2-71-55
through 58). i

Dr. El Sohly testified that growing
marijuana in a Florida pine forest, as
in this case, would constitute less than
ideal conditions. (R2-71-37). According
to Dr. El Sohly, the marijuana would
grow tall but not bushy, and, as a

result, each plant could be expected to

37

yield less than 1/2 pound of marijuana.
(R2-71-38 through 39). Dr. El Sohly
related that a number of variables --
such as irrigation, fertilization
techniques, the frequency of tending,
spacing, topping, the variety grown, and
the length of growing season -- must be
taken into account in attempting to
predict the yield of a marijuana plant.
(R2-71-57 through 61). In his expert
Opinion, there are too many variables to
generalize the average yield of one
marijuana plant. (R2-71-59).

The trial court concluded that Dr.
El Sohly's testimony provided a rational
basis for the presumption that, when
more than 58 plants are involved, for
sentencing purposes, each plant is the
equivalent of 1 kilogram of marijuana.
(R2-71 through 76). Though the trial
court indicated doubts whether the small
seedlings involved in this case

constituted "plants," it nevertheless

_—

38
applied the one kilogram presumption.
(R2-2-77 through 78). Though the amount
involved totaled 10,457.8 kilograms
(10,451 plus 6.8 kilograms of
marijuana), the trial court discounted
the number of plants by 10% -- the
percentage of plants that Dr. Fl Sohly
explained were lost in his studies under
ideal conditions -- and sentenced the
defendants on Counts I and II at Level
34 (3,808 to 18,000 kilograms) rather
than at Level 36 (18,080 to 30,6020
kilograms). (R2-71-77 through 78).

REASONS FOR GRANTING THE WRIT

ke Ts n n impo n
federal sentencing issue of whether

there is a rational] basis for the fifty
plant trigger of U.S,S,G, 2D].1] which

been decided j b
Eleventh Circuit and which should be
resolved by this Court,

U.S.S.G. 2D1.1 provides:

In the case of an offense
involving marihuana plants, if
the offense involved (a) 5@ or
more marihuana plants, treat
each plant as equivalent to l
KG if marihuana; (B) fewer
than 5@ marijuana plants,
treat each plant as equivalent

39

to 1080 G of marijuana.

Provided, however, that if the

actual weight of the marijuana

is greater, use the actual

weight, of the marijuana.
(Effective November 1, 1990).7%

The District Court and Eleventh
Circuit rejected Petitioner's argument
that there was no rational basis for
Section 2Dl.1. Other challenges to the
constitutionality of Section 21D1.1 have
also been rejected by the Eleventh and
other Circuits. See, Unjted States v.
Osburn, 955 F.2d 15080 (llth Cir.

1992) (hereinafter "Osburn"); United
States v,. Lee, 957 F.2d 778 (18th
Cir.1992); United States v. Belden, 957
F.2d 671 (9th Cir. 1992); Unjted States
ve Smith, 961 F.2d 1389 (8th Cir. 1992);

United States v. Webb, 945 F.2d 967 (7th
Cir. 1991); United § H ;

id ‘ uw
This provision appears below

the Drug Quantity Table, marked by an
asterisk. Though the 1991 Guidelines,
effective November 1, 1998, applied to
this case, this provision went into
effect on November 1, 1989 with the
enactment of the 1998 Guidelines.

_— . eee

40
961 F.2d 599 (6th Cir. 1992) (hereinafter
"Holmes"); Uni S S_v,. Und od,
970 F.2d 1336 (4th Cir. 1992). This
Court has not addressed the
constitutionality of Section 2Dl.1 and
its 50 plant trigger. Petitioner
asserts that the resolution of this
question by the Courts of Appeals
deviates from a strict application of
the rational basis test previously

enunciated by this Court.

Under a "rational basis" test, the
reviewing court's role "must be
restricted to the issue of whether any
State of facts either known or which
could reasonably be assumed affords
Support for ‘the questioned legislated
judgment.'" United States v,. Carolene
Products Co,, 304 U.S. 144, 154 (1937).

The Guideline provision here in

question is driven by 21 U.S.C.

841(b) (1) (A) (vii) which provides that an

41]
individual convicted under 21] U.S.C.
841(a) "shall be sentenced to a term of
imprisonment which may be not less than
1@ years if the case involved 1,000 or
more marijuana plants." Thus, a minimum
ten year sentence is triggered by 1,000
Or more marijuana plants. In contrast,
U.S.S.G. 2D1.1's 1 kilogram ratio is
triggered whenever 5@ or more plants are
involved.

For the most part, the decisions of
the various Courts of Appeals concerning
the constitutionality of Section 2Dl.1
have focused on whether there is a
rational basis for the equivalency ratio

rather than the 50 plant trigger. See,

United States v,. Lee, 957 F.2d 778 (18th
Cir.1992); United States v, Belden, 957
F.2d 671 (9th Cir. 1992); United States
Ve Smith, 961 F.2d 1389 (8th Cir. 1992);
United States v. Webb, 945 F.2d 967 (7th
Cir. 1991); United States v. Underwood,

978 F.2d 1336 (4th Cir. 1992). The

42

Eleventh Circuit and Sixth Circuit have
gone on conclude that there is a
rational basis for the 5@ plant trigger.
Osburn, 955 F.2d 1508 (llth Cir. 1991);
Holmes, 961 F.2d 599 (6th Cir. 1992).
The Eleventh Circuit posited that
"..-Congress could have rationally
chosen the current penalty scheme to
halt the problem earlier in the cycle,
making it less likely that the drug
would ever be distributed to the
public,” Osburn, 955 F.2d at 1507.
Petitioner submits that these holdings
have attributed too much to potential
intentions of Congress, rather than to
the intentions of the Sentencing
Commission, which came up with the 58
plant trigger to the 1,000 gram
equivalency ratio in 1989.

Congress dealt with "50" marijuana
plants through its 1986 and 1988

amendments to 2] U.S.C. Section

841(b)(1)(D). In 1986, through Pub. L.

43
99-570, Section 1000 (ad(1)(c). it
inserted "except in the case of 108 or
more marijuana plants regardless of
weight," after "58 kilograms of
marijuana." In 1988, it amended the
statute again, through Pub. L. 100-690,
Section 6479 (3), by substituting "58 or
more marijuana plants" for "10@ hundred
Or more marijuana plants."

The Sentencing Commission did not
come up with the 1,900 gram per plant
ratio until November 1, 1989, when the
1998 Sentencing Guidelines took effect.
Prior to that, the Sentencing Guidelines
were silent on both 5@ or more marijuana
plants and the 1,008 gram equivalency
ratio.

There is no legislative history
supporting the supposition that Congress

chose "the current penalty scheme to

halt the problem earlier in the

44
“; y

cycle. Wich mo Supporting
legislative history and no evidentiary
Support in the record addressing the
question, there is nothing in this
record or elsewhere to suggest what
"could reasonably be assumed" was
Congress' or, for that matter, the
Sentencing Commission's intention.

In this case, the government
presented no evidence disclosing some
rational basis for the selection of
fifty plants as the trigger for enhanced
sentencing, rather than some higher or
lower number. Whereas the 1,089 plant
trigger used in the statute has a

legislative history which discloses that

it was designed to snare large marijuana

12 « S , Analvei ;
Judiciary Committee issues in H.R, 5219,
134 Cong. Rec. S 17366, S 17368 (Daily
ed. Nov. 18, 1988) (comments of Sen.
Biden) (Congress was interested in
eliminating defense and prosecution
arguments debating what constitutes
"usable" marijuana).

45

évesvdbiwnssse there ios uu indicatiun Li
the Sentencing Guidelines of any basis
for a distinction between those who grow
less than or more than 58 marijuana
plants. Moreover, there is no evidence
in this record indicating that
possession of 598 or more marijuana
plants distinguishes large from small
scale operations.

In this case, the Eleventh Circuit
upheld the District Court's holding that
testimony regarding recent developments
in marijuana cultivation provided a
rational basis for the 1,000 gram ratio.
However, the holding overlooked two
important points.

First, even though Dr. El Sohly's
recent 1991 study revealing that a
marijuana plant, under ideal conditions,
could yield more that one kilogram of

marijuana, may provide a rational basis

13 see, HR Rep. No. 99-845, Pt. 1
at i2, Ls

le

46

cor prospective implementation of the
1,800 gram ratio, the results were
unknown at the time the Guideline
provision was enacted. Moreover, the
results were still unanticipated as Dr.
El Sohly's previous testimony in the
Qsburn case, also decided in 1991, which
led the District Court in that case to
conclude that no one would anticipate
that one marijuana plant could yield
more than one kilogram of marijuana.
Thus, the results of Dr. El Sohly's
Studies have no bearing on the legal
question of whether there was a rational
basis, at the time the Sentencing
Commission came up with the 1,000 gram
ratio.

Second, the study has no impact
upon whether there is a rational basis
for triggering the 1,888 gram ratio when
58 Or more plants are involved.

Petitioner submits that the record

and legislative history reflect no

47

rational basis for the Sentencing
Commission's decision to trigger the
1,000 gram equivalency ratio at the 58
plant level. Petitioner accordingly
asserts that the Eleventh Circuit has
improperly decided this question,

The impact of the 5@ plant trigger
has a profound impact in federal
sentencing. The question of whether
there is a rational basis for the 50
plant trigger will surely be raised in
other cases. This Court should resolve

the question.

2. The decision of the Eleventh
Cj , : hi i F1j it]

Rule 3l(c) of the Federal Rules of
Criminal Procedure provides that a
"defendant may be found guilty of an
offense necessarily included in the
offense charged." A lesser offense is
included within the charged offense if

all the elements of the lesser offense

EE —E——

48
are also elements of the offense for
which the defendant stands charged.

schmuck vy. United States, 489 U.S. 795

(1989) (hereinafter "Schmuck"). A
defendant is entitled to a lesser
included offense instruction if the
evidence would permit a jury to
rationally find her guilty of the lesser
offense and acquit of the greater.

Keeble v. United States, 412 U.S. 265

(1973) (hereinafter "Keeble"), Further,
it is well settled that an accused "is
entitled to have presented instructions
relating to a theory of defense for
which there is any foundation in the
evidence, even though the evidence may
be weak, insufficient, inconsistent, or
of doubtful credibility." United States

A -M no, 874 F. 2d 1402, 1413
(llth Cir. 1989), quoting, United States
VY. Lively, 803 F.2d 1124, 1126 (llth

Cir. 1986) (emphasis in Original). In

this case, the trial court's failure to

49
give requested lesser-included-offense
~instructions for the offenses of simple
possession and conspiracy to simply
possess ran afoul of Rule 3l(c), the
lesser included offense and theory of
defense instruction requirements, and
due process requirements of the Fifth
Amendment to the United States
Constitution.

Both Counts I and II referenced 21
U.S.C. 841(a) (1) which provides, in
pertinent part, that: "[i]t shail be
unlawful for any person Knowingly or
intentionally -- (1) to manufacture,
distribute, or dispense, or possess with
intent to manufacture, distribute,
dispense, a controlled substance." With
respect to Count II, the trial court
instructed the jury that it could find
Arlene Godwin guilty of either
manufacturing marijuana or possessing it
with intent to distribute it or guilty

of both.

58

21 U.S.C. 841(a) (1), requires
Knowing Or intentional "possession" as
an element of possession with intent to
distribute. 21 U.S.C. 844(a) similarly
prohibits knowing or intentional
"possession" of a controlled substance.
Simple possession has been widely
recognized as a lesser-included offense
of possession with intent to distribute.

see, @€.9,, United States v, Garcia-

Duarte, 718 F.2d 42 (2d Cir. 1983);

United States v. LoRusso, 695 F.2d 45
(2d Cir. 1982), cert, denied, 460 U.S.

1878 (1983) (hereinafter "LoRusso") ;

Guam vy. Rosario, 625 F.2d 811 (9th Cir.
1979). Here, because there was a
dispute as to the establishment of
intent to distribute -- the element
required for proof of the greater but
not the lesser offense -- a lesser-
included-offense charge was required if
either party requested it. LoRusso, 695

Team @¢ SZ. fi.3.

EE

3 |
This Court, in Keeble, 412 U.S.
205, identified the risk which results
when a trial court fails to give a
lesser-included-offense charge when "the
evidence would permit a jury rationally
to find him guilty of the lesser offense

and acquit of the greater," United

G ia-D , 718 F.2d at 47,
asuoting, Keeble v United States. "Where

the jury suspects that the defendant is
plainly guilty of some offense but one
of the elements of the charged offense
remains in doubt, in the absence of the
lesser offense instruction, the jury
will likely fail to give full effect to
the reasonable doubt standard, resolving
its doubts in favor of conviction."
Schmuck, 489 U.S. at 717, n.9. Citing,
Keeble, (emphasis in original). Arlene
Godwin was subjected to that risk in
this case.

To be sure, there was abundant

evidence supporting the government's

52
contention that she participated in the
manufacturing of marijuana or possessed
it with intent to distribute it. But,
there was also evidence of simple
possession for personal use. The trial
court recognized this in stating during
a charge conference "let me say to both
defendants that there is evidence of
personal use, there is no question about

that."24

(R2-75-847). For example,
there was evidence of a smoking bong,
pipe, rolling paper, a rolled marijuana
Cigarette found in the living room and
marijuana residue found in various
places. Though this evidence may have
been "weak, insufficient, inconsistent,

Or of doubtful credibility," by the

trial court's own admission, it did

14 The trial court made a similar

remark recognizing such evidence in the
trial: "“{wjell, I think you may be
entitled to an instruction of simple
possession by virtue of all the evidence
of just plain old marijuana use that
seems to floating around here." (R2-74-
6968).

53
exist. Thus, there was a "foundation in
the evidence" for an instruction on
simple possession. Moreover, Ms.
Godwin's theory of defense was to admit
guilt of simple possession but not guilt
of the more serious charges.

The trial court's refusal to give
the lesser-included instruction put the
defense in an "all or nothing" position.
And, the trial court gave the jury an
all or nothing choice warned against by
this Court in Keeble.

The jury was sure to believe was
she was guilty of something. Her trial
counsel acknowledged as much to the
jury. To be sure, a special verdict
form was submitted to the jury and the
jury indicated its findings that Arlene
Godwin was guilty of everything. Though
there were alternative theories under
which Arlene Godwin could have been
found guilty of violating 21 U.S.C.

841(a) (1), aS a practical mater it made

54

no difference to her fate under which
theory she was found guilty. But,
because the trial court gave the jury an
all or nothing choice, the jury may have
failed "to give effect to the reasonable
doubt standard, resolving its doubts in
favor of conviction," Schmuck, 489 U.S.
at 717 n.9, quoting, Keeble, with the
theory or theories of guilt being
irrelevant to its decisional process.

Because, aS was recognized by the
trial court, there was a foundation in
the evidence for Arlene Godwin's
requested lesser included charges, the
trial court's failure to give lesser
included offense instructions violated
Rule 3l(c), the lesser included offense

and theory of defense instruction

requirements, and due process.

-

CONCLUSION

For the foregoing reasons, Petitioner
Arlene Elizabeth Godwin submits that the
petition for writ of certiorari should be

granted.

P.O. Box 1307
Montgomery AL 36101
(205)-834-2511

Attorney for Petitioner
Arlene Elizabeth Godwin

la

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 91-4899

D. C. Docket No. 91-3018-@81-RV

UNITED STATES OF AMERICA,

Plaintiff-Appellee
versus
THARON DALE GODWIN, a/k/a
T. D. GODWIN, a/k/a
"BUCKSHOT", ARLENE ELIZABETH
GODWIN,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Florida

(January 25, 1993)

Before FAY, Circuit Judge, GODBOLD and
RONEY*, Senior Circuit Judges.

PER CURIAM: AFFIRMED. See llth Cir
Rule 36-1.

*See Rule 34-2(b), Rules of the U.S.
Court of Appeals for the Eleventh
Circuit.

lb
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
UNITED STATES OF AMERICA
Ve Case No. 91-03018-RV
THARON DOUGLAS GODWIN and

ARLENE ELIZABETH GODWIN
om

ORDER

The issue in this case is whether
there is a constitutional "rational
basis" for treating 1,900 marijuana
plants as the equivalent to 1,008
kilograms or marijuana for statutory and
sentencing guideline purposes. See

United States v. Carolene Land Products

Co., 304 U.S. 144, 154, 58 S.Ct. 778,
784, 82 L.Fd. 1234 (1937); Nebbia v. New
York, 291 U.S. 502, 537, 54 S.Ct. 505,
516, 78 L.Ed. 940 (1934). On May 17,

1991, after a jury trial, the defendants

2b

in this case were found guilty of
marijuana offenses. Sentencing was
Originally held on July 23, 1991, but
was continued in order to allow the
defendants to further develop evidence
regarding the production of marijuana
plants and the yield of useable and
marketable marijuana. An evidentiary
sentencing hearing was held on October
31, 1991, and additional evidence was
presented. Testifying were Donald
Robert Walker, Senior Crime Lab Analyst
at the Florida Department of Law
Enforcement Laboratory in Pensacola, and
Dr. Mahoud A. FlSohly, currently the
Project Director of the National
Institute on Drug Abuse Marijuana
Project at the University of
Mississippi. For the reasons stated

herein, the defendant's constitutional

3b
challenge to portions of Title 2l,

United States Code, Section 841(b) (1),

and Section 2Dl.1 of the United States
Sentencing Commission Guidelines is

DENIED.

i$ Discussion

The defendants, Tharon Douglas
Godwin and Arlene Elizabeth Godwin, were
charged by a three-count indictment
with: (1) conspiracy to knowingly and
intentionally manufacture 1,900 or more
marijuana plants and to possess with
intent to distribute a controlled
substance in violation of Title 2l,

United States Code, Sections 841 (a) (1)

and 846; (2) knowingly and
intentionally manufacturing 1,800 or

more marijuana plants and possessing

with intent to distribute a controlled

4b
substance in violation of Title 21,

United States Code, Section 841(a) (1);

and (3) Knowingly or intentionally
Carrying Or using firearms during and in
relation to a drug trafficking case, for
which they could be prosecuted in a
court in the United States, in violation

of Title 18, United States Code, Section

924(c) (1). Arter a seven day jury trial
in this court, the defendants were found
guilty on all counts. Sentencing was
initially scheduled for, and held on,
July 23, 1991. On that date, this Court
brought to the counsel's attention that
the Osburn and Lee cases, discussed
infra, and the defendants raised the
constitutional objections which are
addressed herein. Sentencing was

continued until October 31, 1991, in

Order to allow the defendants an

Sb

opportunity to develop to develop and
present evidence on the issue, anc the
parties were also given the opportunity
to submit written legal memoranda.

At the time of the defendants’
arrests, law enforcement officers from
the Santa Rosa County, Florida,
Sheriff's Department seized 10,451
marijuana plants, all in seed trays, and
in the early stages of growth in four
separate seedbeds. The plants ranged in
size from about two inches to about five
or six inches in height.

Law enforcement officers also
seized a large number of black plastic
trays. Evidence presented at trial
indicated that these trays were
consistent with those used as seedbeds
for marijuana seeds prior to

transplanting them as seedlings in other

en

6b
areas. The evidence indicated that the
defendants had about 1708 pounds of
Miracle Grow fertilizer, tillers,
camouflage screening, P.V.C. pipe,
insecticides, etc., indicating a rather
large and sophisticated marijuana
growing operation. Law enforcement
officers also discovered approximately 3
kilograms of various varieties of
marijuana seeds, and approximately 4
kilograms of marketable marijuana, much
in ounce-guantity bags. The marijuana
varieties included those known in the
trade "Blue Hawaiian," "Afgan," "Skunk,"
"Redbud,” and "Black Columbian." At the
time of sentencing, the Presentence
Report indicated that the total guantity
of marijuana utilized for offense level
purposes under the guidelines was

18,457.8 kilograms, based on 16,451

Tb

plants and 1 kilogram per plant and the
additional 6.8 kilograms of marijuana
found. Offenses involving between
10,006 and 32,000 kilograms of marijuana
have a base offense level of 36.

It is well established that Acts of
Congress are reviewed by the courts on a
standard of whether the legislative
judgement had a "rational basis" and was
not arbitrary or discriminatory. See

Carolene Products Co, and Nebbia, supra.

The guidelines promulgated by the

United States Sentencing Commission are
also subject to the same standard of
review. "The authority to define and -
fix the punishment for felony
convictions is purely a matter of

legislative prerogative.” United States

v. Hatch, 925 F.2d 362, 363 (10th Cir.

1991) (quoting United States ve

8b

Goodface, 835 F.2d 1233, 1236 (8th Cir.

1987)). When a statute does not
discriminate on racial grounds or
against a suspect class, Congress'
judgment will be sustained in the
absence of persuasive evidence that
Congress had no reasonable basis for
drawing the lines it did. United States
Ve SOlomon, 848 F.2d 156, 157 (llth Cir.

1988); United States vy, Holmes, 838 F.2d

Ravage. anes (Lith Cir. 1988). Thus,- a
court need only find that Congress had a
rational basis for the choice of

penalties. Chapman v, United States,

508 U.S. 111 S.Ct. 1919, 1927, 114

—_———/

L. Ed. 2d 524, 538 (1991).

A. Actual Weight of Contraband Is

Irrelevant. Title 21, United States

Code, Section 841(b) (1) (A) (vii) requires

a ten-year mandatory minimum sentence,

9b
with a maximum of life, for offenses
involving "1808 kilograms or more of a
mixture or substance containing a
detectable amount of marijuana, or 1000
Or more marijuana plants regardless of
weight." 21 U.S.C. Section
841(b) (1) (A) (vii). The defendants argue
that the actual weight of all the 190,451
confiscated plants did not exceed one
pound. If only the actual weight of the
confiscated marijuana is used, the
Statute provides for a maximum sentence
of five years, and no minimum mandatory
sentence. See, 21 U.S.C. Section
841(b)(1)(D). Thus, resolution of the
issue in this case has a major effect on
the defendants' sentencing. However,
the plain language of this provision

indicates that the applicability of the

ten-year mandatory minimum provision to

1@b
offenses involving marijuana plants is
determined by the number of plants, not

by their weight. see United States vy,

Eves, 932 F.2d 856, 856 (9th Cir. 1991)
("The number of plants determines the
mandatory minimum sentence of
imprisonment in a conviction for
possession with intent to distribute").
Furthermore, the legislative
history of Section 841(b) (1) (A) (vii)
makes it clear that in enacting a
mandatory minimum sentencing provision
based solely on the number of plants
possessed by the defendant, Congress

""intended to punish growers of

1 ne

This provision is part of a
scheme of graduated penalties for those
convicted of marijuana cultivation,
whose penalties are prescribed based on
the number of plants involved, with
breakpoints at 58 plants, 108 plants,
and 1,000 plants. See 21 U.S.C.
[Section] 841(b)(1)(A)-(D).

a

lib
marijuana by the scale of potential of
their operation and not just by the
weight of the plants seized at a given

moment'." United States v, Fves, Supra,

932 F.2d at 859 (quoting United States

Vv, Fitol, 733 F.Supp. i3i2,) igen tex

Minn. 199@)). The Senate Judiciary
Committee's report regarding the
applicable provision of the Anti-Drug
Abuse Act of 1988 directly addresses
why:

Section 841(b) (1) (A) provides
for a mandatory minimum 10
year penalty for distribution,
Or possession with intent to
distribute, of "1,000
kilograms or more of a mixture
Or substance containing a
detectable amount of
marijuana." Defendants
charged with possessing large
guantities of marijuana plants
have argued that the statutory
Gefinition of marijuana plants
specifically excludes seeds
anc stems of the plant, and
that therefore these items may
not be counted toward that
1,0@0@ kilogram requirement.

_————e crm

12b

The government has argued

in response that the tern
"mixture or substance"
encompasses all parts of the
plants as harvested,
peewennetand ing the statutory
definition of "marijuana," but
defendants contend that the
"mixture or substance"

language applies only to
marijuana after it has been
prepared for illegal
distribution. The defendants!
position has been adopted by
at least one court. United
States v. Miller, 680 F, Supp.
1189 (E.D. Tenn. 1988).

The amendment jis jintended
to curtail this unnecessary
debate by providing that the
Minimum penalty is triggered
either by the weight of the
"Mixture or substance" or by
the number of plants
regardless of weight, The
bill uses 1,909 plants as the
equivalent of 1,909 kilograms,

Section Analysis of
Judiciary Committee
issues jn H.R, 52]1Q,
134 Cong. Rec.
S17360, S17368
(daily ed. Nov. 18,
1988) (comments of
Sen. Biden).
(emphasis added)

Therefore, as a preliminary matter,

13b

I find that Congress has expressly
provided for an enhanced, 18-year
minimum sentence for "1,@00 or more
marijuana plants regardless of weight.”
The actual weight of the plants is
irrelevant under the statute. United
S$ S_v,. Brad » 905 F.2d 353 (ilth
Cir. 1998).

B. Section 841(b) (1) (A) (vii) and

Sentencing Guideline 2D],] are not
Unconstitutional. The Defendants have

challenged the constitutionality of both
Section 842(b) (1) (A) (vii) and Sentencing
Guideline 2D1.1. Section 2D1.1 of the
(1991) Sentencing Guidelines provides:

In the case of an offense
involving marihuana plants, if
the offense involved (A) 5@ or
more marihuana plants, treat
each plant as equivalent to l
KG of marihuana; (B) fewer
than 58 marihuana plants,
treat each plant as equivalent
to 108 G of marihuana.
Provided, however, that if the

14b

actual weight of marihuana is

greater, use the actual weight

of the marihuana.

[Section] 2Dl.1 at ae,
n.*. (Manual effective
11/1/96)

The defendants argue that there is
no rational basis for Congress'
selection of one thousand plants as a
trigger for the enhanced, ten years to
like, sentencing and the application of

the mandatory sentencing provisions

contained in Title 21. United States

Code, Section 841(b). According to the

defendants, there is also no rationel
basis for the treatment by the Drug
Quantity Table in Section 2Dl.1l(c) of
the Sentencing Commission Guidelines
making one marijuana plant equivalent to
one kilogram of marijuana. Therefore,

the defendants argue, these proportions

of both the statute and the sentencing

15b

guidelines are arbitrary and
unconstitutional in application, and
deny the defendants due process and
equal protection, contrary to the Fifth
and Fourteenth Amendments to the United
States Constitution. (See documents 56,
58).

In support of their argument, the

defendants rely upon United StateS Ve

Osburn, 756 F.Supp. 571 (N.D. Ga. 1991),
in which the court held that Sentencing
Guideline 2Dl.1 was unconstitutional to
the extent that the guidelines equated
one marijuana plant with one kilogram of
marijuana for plants in groups of 58 or
more. The defendants also cite United
States v, Lee. 762 F. Supp. 306 (D.Kan
1991), which held unconstitutional the

application of the minimum mandatory

sentencing contained in Section 841 (b)

16b
on the grounds that the selection of one
hundred plants for the 5-year minimum
mandatory sentence enhancement purposes
(as the equivalent of 180 kilograms) was
without a rational basis.

I also note that Unjted States v,

etreeter, 907 F.2d 781 (8th Cir. 1999)
held that, prior to being amended, the
sentencing guidelines were
unconstitutional to the extent that one
marijuana plant equated 100 grams in
cases involving less that 5@ plants,
Since the underlying statute regquired
the actual weight of the plants to be
used in cases of less that 5@ plants.

(1) Newly Developed Data. In

light of the evidence presented in this
case, I must -respectfully disagree with

the reasoning of the Lee and Osburn

courts. In Osburn, the court relied

17b
upon the testimony of Mahoud A. ElSohly,
who also testified in this case. In
Osburn, as in this case, Dr. Fl1Sohly
testified regarding a two-year study he
had undertaken to determine the average
weight of usable marijuana produced by a
cannabis plant. His study involved both
Mexican and Columbian varieties of long
maturity. The plots of marijuana were
well fertilized and irrigated. Using
the Mexican variety at stages of
maturity from 12 to 21 weeks, Dr.
FlSohly's plants averaged a usable
marijuana yield of 222.37 (.2
kilograms). [See Table l, attached.]
Using only mature plants, the Columbian
variety averaged a bit higher, at 273.7
grams of usable marijuana. [See Table
2, attached.] In the Qsburn hearing,

Dr. F1lSohly testified that he had never

18b
seen Or grown a plant in which produced
as much as one kilogram (or 2.2 pounds)
of marketable marijuana, and that, even
under ideal conditions, he would not
expect any marijuana to yield an average
of one kilogram per plant.

Both the Osburn and Lee decisions
were based on the absence of any
evidence to indicate that a marijuana
plant, even under the optimum
conditions, can yield one kilogram of
dry marijuana leaves. Such is not the
case here.

; In this case, the defendants also
called Dr. ElSohly as an sapece witness
in the area of marijuana cultivation.
However, Dr. ElSohly testified that,
after being a witness in the Osburn
case, he undertook another study to

experiment with other growing factors to

19b

determine whether a yield of one
kilogram per plant was possible. The
prior study had been based on 36-inch
rows and a 36-inch plant spacing, or
nine square feet per plant. In these
studies, Dr. ElSohly varied the
distances between the rows of plants and
the spacing of the plants themselves anc
discovered that increased spacing
resulted in increased yield of usable
marijuana. [See Tables 3 and 4,
attached.] Indeed, when the plants
harvested by Dr. Elsohly in 1998 had
been allocated 81 square feet (planted 9
feet apart, with 9 feet row spacing),
they yielded up to 1011 grams. In the
1991 tests, plant having 72 square feet
of growing area averaged 1152 grams (2.5
pounds). [See Table 4, attached.]

Based on Mr. ElSohly's most recent

|

2 0b
research and his testimony regarding the
results of this research, I conclude
that it is quite possible to produce one
kilogram of dry usable marijuana from
one marijuana plant. Accordingly, there
is a rational basis for the use of that
equivalency in both the statute and the
guideline,a nd there is no

constitutional infirmity.*

‘ Dr. F1lSohly's testimony also
addressed the question of when is a
Seedling a "plant" for purposes of the
Statute and guideline. Clearly, a
Sprout that is barely more than a
germinated seed can be called a plant,
but that hardly seems to be a reasonable
construction of what Congress and the
Senténcing Commission had in mind. He
testified that under ideal conditions,
with each seedling having its separate
container, about 18% would not survive.
If transplanting from seed trays
containing several hundred seedlings,
ranging in size from about 2 inches to 6
in€hes in height, the loss rate would
probably be considerably greater because
the root separation difficulty, with
attendant breakage and bruising of the
seedlings. Therefore, I applied a 10%
reduction to the 16,451 seedlings to

(2) ongressjion Policy. Another
reason for upholding the statute and
sentencing guideline in question does
not depend on evidence that one plant's
usable product could weigh in excess of
one kilogram.

The Supreme Court of the United
States has recognized that there is no
constitutional requirement that
penalties for drug offenses reflect
different defendants' "individual
degrees of culpability." Chapman,
Supra, 500 U.S. at ---, 111 S.Ct. at
1928, 114 L.Ed. 2d at 539. I find that
“there is a rational basis for the
distinction made between those convicted

of growing less than 58 plants and those

arrive at a net of 9,486 "plants" for
sentencing purposes. This, in my
judgment, more closely approximates what
would actually be the plants with some
expectation of growing in a field.

===

22b
convicted of growing in excess of 59
plants, regardless of whether one plant
can produce one kilogram - or more usable
product. "Setting punishment on the
basis of the number of plants is not
arbitrary or irrational. In general,
more plants can create more marijuana.
Setting a fixed punishment per plant
negates the need for complicated
hearings to determine the potential

yield of a given plant." United States

Ve Sousa, 949 F.2d 670 (9th Cir. 1991)
(Text available on Westlaw). See also

United States y, Motz, 936 F.2d 1621,

1625 (9th Cir. 1991) ("There is no
constitutional requirement that the
penalty for an offense involving one
marijuana plant be equal to the penalty
for an offense involving the guantity of

dried marijuana the plant would yield.")

23b

Congress and the Sentencing
Commission apparently perceived a
greater treat posed by those who produce
marijuana on a much larger scale. As
noted by the Supreme Court of the United
States, "[t]he penalty scheme set out in
the Anti-Drug Abuse Act of 1986 is
intended to punish severely large-volume
drug traffickers at any level." Chapman
vy. United States, 509 U.S. ____, 111
S.Ct. 1919, 114 L.Ed. 2d 524, 538
(1991). See also HR Rep. No. 99-845,
Pt. 1 at 12, 17. Thus, the high
mandatory minimum sentences for larger
scale growers who are caught with over
58, or over 100, or over 1,808 plants
reflect Congress' and the Sentencing
Commission's view towards the
seriousness of the offenses, not a

scientific and precise determination

: 24b
that one plant was Capable of producing
one kilogram of marijuana,
DONE AND ORDERED this _26 day of

November, 1991,

Zs/_ Roger Vinson

ROGER VINSON
United States District Judge

WET WEICIT(g)

Statlettes fer the Preduetion af Me ‘5

ONY SFICIT(¢)

@ frew Plantes of Different & .

lof dry Zof ary 2 of dry Teof vet = of vert I of ¢ry
vole Stale Scalk/ leaves lesves stalb/ates plane leew “Call/stas leaves
Mtewt @ Plant Seems } Stems le to iry r! te bet WP oto Vee iP te Wel bP te vet 2? to

5 : Pr ia 136 43.5 ” 6 35 at 45 $5 ” 160
” 2 1909.7 202 gar. 130.5 io 29 ” 46 34 P| 2
ie ) 1055 os? 0 an see is ae 42 eo 40 269
; : 216) 966 622) owas ” ae 9 6 45 33
1% 5 2222) i$ye 16 6 lato 25 i ’ 4) 2 a BT 224
6 22681593 $ 2) es? 2s n % n “ % 2h
sy? 972139 bil 635 221.5 s " ” “h 3) i ob)
ee | 1728 446 7 in ere 20 10 ” 6 7 Mu us
3g 1472 97 ? nN is 27 ) at
2 19 268) 1G 93 217.6 20 T) ” a) +B) ” 338
Se enenesnsecinnsonisnaasecseien.
erege ! ‘1230.6 608.97 630.9 222.97 »” 12.3 ’ ‘ 16

,
Table 2. Scacistice fer OOO: CC be ce of Hive b heocece frre Mature ianie
LPT SEICHT(g) CRY NEICUT(g) as ae
Tel dey Lel Mey 2x of wot 2 of wet lef dry ‘| ne
hele Stalk/ Staia/ atalh/sice plant leaves sCait/stoe leaves Meighe 1 -
Firee # Plane Stres leaves Stems leaves Co Vet UF te Vee uP to Vet SP te Vee ur te Vet leaves (em) '
henna nnentnneseinmmuemenens to co.
: 2633126: 1456 09 » is ” 6 2 “a “6 149 ‘
L 2 2680 = 1620S 060 6 u 6 .T 9 ” re) a) uu BT ives
) 1712 1200542 TT 23 i % ” 30 rT) 3 1) Mee
@ ~*~ an93 8s) S Gse 259 33 ts 2 ry 39 61 py) 16
a 5 47390 adie 5 sve in » 10 43 9 PD oD] iM
N 6 2344 = 1314 1030 62 9 % is ” so 44 “6 ” 2
’ 22891543743 sie 140 1s = ry % “0 ) “s i” 137
4 2291 413 Bry 180 3 3 vi “eo % ts ary 214
, 1168 60 400 i.e 25 it Bry 45 oT “9 »% 20
10 136 9 out $40 1s? 23 rr) 9 oy r) rr) ‘a 144
ee A a.ces

a

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2441%3A1. Public record. Not legal advice.