Unpublished Disposition, 919 F.2d 147 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 919 F.2d 147 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Michael Vincent VILLARDI, Defendant-Appellant.

No. 90-30116.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 1990.Decided Nov. 23, 1990.

Before TANG, O'SCANNLAIN and LEAVY, Circuit Judges.


MEMORANDUM* 

Villardi appeals his conviction for manufacturing marijuana alleging insufficient evidence supported his conviction. Villardi was arrested in a remote portion of a National Forest in Washington.

Villardi was convicted of knowingly manufacturing a controlled substance. 21 U.S.C. § 841(a) (1). Manufacturing is defined as the production of a controlled substance. 21 U.S.C. § 802(15). Production is further defined as "planting, cultivation, growing, or harvesting of a controlled substance." 21 U.S.C. § 802(22).

Villardi contends that the evidence is insufficient to sustain his conviction. He argues that his mere proximity to the marijuana cannot sustain his conviction. Villardi's knowledge of the charged crime is demonstrated by parking his automobile off the side of the road as if hiding it, walking directly to the well concealed marijuana garden located in a remote location, and subsequently giving an incriminating statement.

Villardi asserts that the garden was not located in a remote location because of its proximity to roads and private property and because hunters and firewood seekers use the forest. The jury heard testimony from two people that the garden was in a dense, bushy and remote location. The officers also testified that the garden was well-hidden and difficult for them to find, even though they knew there was a marijuana garden in the vicinity. The jury is entitled to believe this testimony. Viewing the evidence in the light most favorable to the government, the jury's inference that Villardi knew where the garden was from his actions should not be disturbed. See United States v. Sarault, 840 F.2d 1479, 1487 (9th Cir. 1988) (the evidence should be viewed in the light most favorable to the government).

The evidence of Villardi's manufacture of marijuana is also clearly inferable from the following facts. Villardi was observed entering the garden. He spent twenty to thirty minutes inside the garden. While he was in the garden, snapping noises were heard as if leaves were being picked. Leaves were found on the ground. After his arrest, Villardi stated: "I just started doing this, and I thought maybe I should stop, but I was doing it, so I just kept on." The jury could have considered this statement as an admission and found that Villardi was involved in cultivating marijuana.

Villardi next argues that the government must have established his constructive possession of the garden. United States v. Holland, 445 F.2d 701 (D.C. Cir. 1971). Holland requires evidence beyond mere presence at a location where drugs are kept, such as constructive possession, to establish possession of narcotics. As we have noted, Villardi's case presents more than mere proximity to drugs.

In sum, the government introduced sufficient relevant evidence from which the jury reasonably could have found Villardi guilty beyond a reasonable doubt of manufacturing marijuana. United States v. Sarault, 840 F.2d at 1487.

B. The Failure of the Government to Investigate

Villardi cites Holland v. United States, 348 U.S. 121 (1954), for the proposition that the government should have conducted a more thorough investigation of this case. Villardi notes that the government failed to see and observe him while in the garden, that the surveillance lasted only fifteen minutes, that the government searched no living quarters and failed to wait and see whether someone else might attempt the imminent harvest. The government also failed to clarify Villardi's incriminating statement.

Holland requires the government to examine leads provided by the defendant in a criminal case which might exculpate him from guilt. United States v. Greene, 698 F.2d 1364, 1371 (9th Cir. 1983). Villardi, however, indicated no leads that might have exculpated him. Even if someone else had come along, that fact would not have disproved that Villardi was engaged in the growing of marijuana. Therefore, Villardi's argument that the government should have conducted further investigation fails.

CONCLUSION

Villardi's conviction for knowingly manufacturing marijuana is AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3