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United States v. Harvey

June 30, 1997

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

RODERICK T. HARVEY,

DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Illinois, Benton Division.

No. 96 CR 40018 J. Phil Gilbert, Chief Judge.

Before Eschbach, Kanne, and Rovner, Circuit Judges.

Kanne, Circuit Judge.

Argued January 14, 1997

Decided June 30, 1997

No one disputes that Roderick Harvey and his dog, Drigo, set up a campsite in the Shawnee National Forest in southern Illinois sometime during 1995. What was disputed at trial was the connection between Harvey and several plots of cultivated marijuana that law enforcement officials found near the campsite. A federal jury convicted Harvey of manufacturing the marijuana in violation of 21 U.S.C. sec. 841(a)(1), and because Harvey was convicted of manufacturing more than 100 marijuana plants (148 to be exact), the District Court sentenced Harvey to the statutory minimum of 5 years in prison. See 21 U.S.C. sec. 841(b)(1)(B)(vii). On appeal, Harvey asserts three trial errors. First, Harvey complains about the District Court's preclusion of one of his expert witnesses as a discovery sanction. Second, Harvey contends that written materials found at the campsite and allegedly belonging to Harvey should not have been admitted into evidence. Third, Harvey asserts that the District Court's rejection of his proffered jury instructions denied him a fair trial. We find that although the District Court may have erred by precluding Harvey's expert witness, none of Harvey's arguments justify reversing his conviction. We therefore affirm the District Court's judgment.

I. History

On June 10, 1995, Harvey was seriously injured when he collided with a truck while riding a bicycle. Harvey spent the next month and a half in a hospital and rehabilitation center as he recovered from the accident. From his first day at the rehabilitation center, Harvey expressed concern about his dog which was apparently somewhere in Shawnee National Forest. Harvey left the rehabilitation center against medical advice on July 30.

On June 13, meanwhile, law enforcement officials noticed what appeared to be marijuana cultivation plots while flying over the Shawnee National Forest. On June 28, two officers reached the isolated, rugged location on foot and discovered five marijuana grow plots. Some of the marijuana plants were 6-7 feet tall, and the officers also found a well-developed campsite nearby which contained two tents. Although the officers came across no people at the campsite, a large but emaciated German shepherd growled and barked at the officers. The officers left the campsite but returned several days later to install vibration-activated video surveillance equipment. Officers periodically checked the equipment, but the camera never revealed any human presence at the site.

On the evening of August 1 -- two days after Harvey left the rehabilitation center -- officers conducting live surveillance of the campsite area saw Harvey moving about the campsite on crutches. The officers arrested Harvey. Harvey mentioned at the time that he thought his dog had crawled off somewhere and died during Harvey's medical recovery.

On August 2, officers conducted a thorough search of the campsite and discovered freshly-cut marijuana and a black satchel near where Harvey had been sleeping in one of the tents. Inside the satchel were two notebooks which contained diary-like entries and things-to-do lists. The notebooks contained references to planting dates, planting conditions, and the grow plots around the campsite. One important entry, dated May 26, contained a crossed-out notation stating "20 plants into ground up top today." Another entry referred to the National Organization for the Reform of Marijuana Laws (NORML). Numerous entries mentioned a dog named Drigo. Also found at the campsite were miscellaneous papers bearing Harvey's name and a copy of High Times, a magazine generally devoted to the cultivation of marijuana. On that same day of the search, during his transportation to federal court in East St. Louis, Harvey asked a police officer about his dog (which the officer remembers Harvey referring to as "Drago") and about the status of his camping gear back at the campsite.

Harvey was indicted by a grand jury on August 9, but that indictment was dismissed because it alleged that Harvey had manufactured the marijuana between July 1 and August 1 -- a period during most of which Harvey was at the rehabilitation center. Harvey was re-indicted on February 7, 1996, and this indictment alleged that Harvey manufactured the marijuana between February 1995 and August 2, 1995. Harvey was convicted by a jury on March 20, 1996, and the District Court subsequently sentenced Harvey to 60 months incarceration, a $500 fine, and four years supervised release.

II. Analysis

A. Exclusion of Expert ...


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