Conviction for PWID Marijuana Upheld

US v. Montgomery, No. 07-3069, 1/10/08 (unpublished): Cop observed defendant buy a bunch of stuff at a hydroponics store. Criminal history check turned up two pot-related convictions. Check of utility records revealed that defendant’s residence used a lot more electricity than comparable residences in the neighborhood. Cop observed two dryer vents and a temperature-regulated attic fan at the house, and dug pot stems and clippings out of the trash. He got a search warrant and found a large pot growing operation in the house and 101 plants. Defendant was indicted on one count of possession with intent to distribute 100 or more plants and was convicted at trial.
Held: 1) Probable cause supported the issuance of the warrant, and even if it didn’t, Leon good-faith exception applied; 2) defendant waived any error in court’s failure to give a special verdict form allowing the jury to find that he possessed with intent to distribute a small amount of marijuana for no remuneration, since his counsel was well aware of the issue and specifically agreed not to include this (the issue apparently was based on fact that defendant’s landlord testified that he and others smoked pot with the defendant at the house); and 3) in light of overwhelming evidence of defendant’s guilt, there was no plain error in supposedly prejudicial comments made by prosecutor during witness examination and closing argument that denigrated defense counsel, to which no objection had been made. The Tenth did not recite the contents of the prosecutor’s statements.