Marijuana plants kept for cloning purposes, but not necessarily direct distribution, are part of marijuana distribution enterprise

STATUTORY CONSTRUCTION United States v. Montgomery, No. 05-3263, ___ F.3d ___ (10th Cir. Nov. 14, 2006)(Kansas). Government appeal of district court’s grant of defendant’s motion for judgment of acquittal and district court’s alternative grant of new trial in case alleging possession with intent to distribute one-hundred marijuana plants in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B). HELD: (1) District court erred in granting defendant’s motion for judgment of acquittal for insufficient evidence of defendant’s intent to distribute all one-hundred marijuana plants seized. Proof of specific quantity of marijuana plants is not necessary to establish predicate violation of § 841(a)(1) of possessing marijuana with intent to distribute. Proof of specific quantity is necessary only to trigger specific statutory penalty under § 841(b)(1)(B)(vii). (2) District court erred in determining that two marijuana plants kept for cloning were not kept for purpose of marijuana distribution. “Mother plants” used for cloning are part of marijuana distribution enterprise. Therefore, they are part of predicate § 841(a)(1) offense of knowingly or intentionally possessing with intent to distribute. (3) District court erred in granting new trial where defendant moved for judgment of acquittal but never moved for new trial. Because defendant never filed motion for new trial, much less file motion within seven days of verdict as required by Rules 33(b)(2) and 29(d)(1) of Federal Rules of Criminal Procedure, district court had no jurisdiction to order new trial. Read the opinion here.