United States Court of Appeals, Tenth Circuit
468 F.3d 715 (2006)
The defendant used a rented room in a friend’s home for the operation of a marijuana grow room. After agents observed the defendant making a large purchase at a hydroponics store, noted unusual electrical consumption at the residence, and found the schedule one drug, marijuana, in a garbage can outside of the home, the government searched the residence. During their search, a DEA agent found a large marijuana growing operation in two rooms of the home. The majority of the marijuana plants were located in the defendant’s room, but a “mother plant” and clones were kept in another room in the residence. The defendant was indicted and found guilty for possession with intent to distribute 100 or more marijuana plants. The defendant moved for a directed verdict of acquittal and the district court denied the motion.
The defendant claimed that the prosecution failed to provide expert testimony that he possessed one hundred or more marijuana plants, all of which were intended for sale and distribution.
In Montgomery, the Appellate Court ruled that the prosecution did not present sufficient evidence that the defendant intended to harvest and distribute marijuana from the “mother” plants. The court ruled that because the prosecution presented evidence that the defendant kept some of the plants in a second bedroom, the evidence introduced during the trial did not prove that the defendant was going to distribute marijuana from all of the plants. This brought the total number of plants to under one hundred, and the court granted the defendant’s motion for acquittal.