United States v. Stever

603 F.3d 747 (9th Cir. 2010)

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Nature of the Case

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Facts

Officers executed a warrant to search the 400-acre rural property on which D lived with his mother. They discovered a marijuana growing operation in an isolated corner of the property bordering a 40-acre tract belonging to the Forest Service. Most of the plants grew on the Stever property. The remaining plants, along with a camping tent, cook tent, and disassembled greenhouse--all camouflaged to prevent aerial detection--were located on Forest Service land. Two men, described as Hispanic, fled the scene when the officers arrived, leaving behind various personal effects, including clothing, two firearms, a cell phone, and a wallet containing the resident alien ID card of Alfredo Jesus Beltran-Pulido (Pulido). The wallet also contained D's business card and D's mother's cell phone number. D's phone records showed that he frequently called some of the phone numbers contained in the cell phone found at the scene. D told friends, family, and later the police, that he had hired Pulido and several of his Hispanic associates in May to work on a generator and repair fences on the property. D's mother confirmed that these men had been hired to work on the generator, which she was having repaired because she hoped to sell it. Pulido and D also socialized together. Pulido was briefly romantically involved with one of D's friends. P presented evidence that, in mid-May, 2007, D abruptly revoked the permission his mother had given a neighboring rancher to graze his cattle on the property. D told the rancher that someone without any cattle was willing to pay more for a lease. Tire tracks observed on a dirt road leading from D's house to the area of the marijuana operation on the morning of the raid matched the tread on the pick-up truck that D drove. D provided unchallenged testimony that the same tread was used by at least half the pick-up trucks in the county, including many police and Forest Service trucks, and likely including some of the police vehicles that traveled the same road to the marijuana operation to conduct the raid. The operation was located about a mile--along a winding dirt road--from the house in which D lived with his mother and was separated from the rest of the property by a large forested hill. D's house sat close to the main, paved road, and just normal use of the house would never take D to the area of the property that contained the operation. There was no testimony that anyone had seen D travel to the part of the property that contained the marijuana operation. D was indicted and sought pre-trial discovery of any reports in the government's possession describing the 'characteristics, modus operandi, and other information regarding' Mexican DTOs involved in growing marijuana. The operation on D's property bore several distinctive characteristics of Mexican DTO operations, and that Mexican DTOs tended to exclude local Caucasians from their operations. The district court denied discovery. D moved in limine to prevent P from arguing at trial that he had conspired with a DTO to manufacture marijuana. The court prohibited all parties from putting on evidence regarding Mexican DTOs or 'who else might have been involved.' D made offers of proof, but all were rejected. D argued to the jury that he had no involvement in the operation. P emphasized the location of the operation, calling its presence on an accessible, though remote, area of D's property a strong piece of evidence in their circumstantial case. The jury returned guilty verdicts on both counts.