United States v. Montgomery (676 F. Supp. 2d 1218, 2009)

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

On January 19, 2005, after a two-day trial, a jury found defendant guilty of knowing and intentional possession of 100 or more marijuana plants with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. See Doc. # 47. On March 1, 2007, the Court sentenced defendant to 120 months in prison and eight years of supervised release. See Doc. # 85. This matter is before the Court on defendant’s Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody (Doc. # 111) filed July 10, 2008. In that motion, defendant claims that trial counsel was ineffective in (1) not letting him testify at trial and (2) not filing a motion to dismiss based on the government’s destruction of evidence. Defendant also claims that he is actually innocent. On June 5 and August 28, 2009, the Court held an evidentiary hearing on those issues. For reasons stated below, the Court now sustains defendant’s motion.

1. Facts

Based on the case record and evidence presented at the Section 2255 hearing, the Court finds as follows:

A. Events Before Trial

On May 5, 2003, DEA agent Brent Coup led a group of law enforcement officers in executing a search warrant on defendant’s residence in Kansas City, Kansas. Inside the house, they found a large marijuana grow in the back room. Agents also found a small grow room with clones and mother plants. Agents testified that they counted 101 marijuana plants with roots, stems and leaves and collected ten samples which tested positive for marijuana. Agents photographed and video taped the plants both in and out of their grow blocks. The photographs and video tape do not reveal the number of plants, however, so it is impossible to determine the number of plants from the photographs and video tape.

Two days after the search, the United States Attorney’s Office directed Coup to destroy all of the marijuana plants except the ten samples. Specifically, Special Assistant United States Attorney Sheri McCracken wrote Coup as follows:

Per our conversation of May 5, 2003, all evidence in the above listed case was photographed or video taped in its entirety, additionally 10 samples were retained for testing purposes as well as one of the light units. Please dispose of or destroy the remaining marijuana plants according to your department policy.

Exhibit A to Defendant’s Supplemental Memorandum In Support Of His Motion Under 28 U.S.C. § 2255 (“Defendant’s Supplemental Memorandum ”) (Doc. # 132) filed August 3, 2009. On May 23, 2003, DEA agents destroyed all the marijuana plants.

Four months later, on September 18, 2003, the grand jury issued an indictment which charged that on or about May 5, 2003, defendant knowingly and intentionally possessed with intent to distribute 100 or more marijuana plants, a controlled substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. See Doc. # 1. In charging possession with intent to distribute 100 or more marijuana plants, the government invoked 21 U.S.C. § 841(a) and (b)(1)(B), which impose higher penalties than those which pertain to unspecified or lesser quantities of drugs. To convict defendant under applicable law at that time, the government had to prove beyond a reasonable doubt that defendant possessed at least 100 marijuana plants with intent to distribute. See United States v. Montgomery, 468 F.3d 715, 719 (10th Cir.2006). Because the drug quantity exposed defendant to a higher maximum sentence under Section 841(b)(1)(B), the government had to allege and prove that amount to the satisfaction of a jury beyond a reasonable doubt. See United States v. Ramirez, 43 Fed.Appx. 358, 360-61 (10th Cir.2002) (Section 841(b)(1)(C) set maximum penalty for Section 841(a) violation unless quantity of drugs for enhanced penalty alleged in indictment and found by jury beyond reasonable doubt); United States v. Cernobyl, 255 F.3d 1215, 1218 (10th Cir.2001); United States v. Jones, 235 F.3d 1231, 1236-37 (10th Cir.2000). If the case had involved 99 plants or less, however, the government would not have prosecuted the case. See Jury Trial — Testimony of Brent Coup (Doc. # 69) filed December 12, 2005 at 59:1-6.

Defense counsel Mark Sachse did not challenge the government’s destruction of evidence prior to trial.

B. Trial

On January 18 and 19, 2005, the Court held a two-day jury trial. Defendant did not testify.

At trial, the only evidence regarding the number of plants came from Agents Coup and Carillo, who each testified that they had counted 101 plants with roots, stems and leaves. See Jury Trial — Testimony of Brent Coup (Doc. # 69) at 55:16-19; Jury Trial (Doc. # 71-1) filed December 12, 2005 at 158:6-8. The jury saw photographs and video tape which agents had taken on May 5, 2003, but they did not disclose the number of plants or whether all of the plants had formed roots.

Regarding the photographs, Agent Coup testified that as case agent, he asked agents to photograph certain things which he found to be significant based on his training and experience. See Jury Trial— Testimony of Brent Coup (Doc. # 69) at 21:24 to 22:3. Coup testified that agents laid the plants on top of saw horses so that they could photograph the root systems, stems and leaves. Id. at 55:23 to 56:4. Coup stated that after they had photographed and taken samples from the plants, agents stuffed them into two large lawn bags, where they would grow mold and fungus. Id. at 56:5-14. Coup testified that he did not have facilities to dry out the marijuana, and that random sampling was an acceptable practice under DEA protocol. Id. at 57:11-25. Coup stated that agents did not keep the plants because they did not have sufficient storage facilities and the plants would mold and stink. Id. at 72:5-8.

Coup testified that agents did not keep a visual record of the number of plants. Id. at 92:22 to 93:4. Coup stated that it was not possible to take a picture which showed the number of plants. Id. at 89:18 to 90:8. Coup testified that it would have been possible to keep a sample from each of the 101 plants, but that DEA protocol required him to take samples from only ten plants. Id. at 91:12 to 92:21. Coup stated that he gave a placard to Officer Carillo, thinking that he would take a picture of the entire grow with the placard stating the number of plants. Id. at 83:25 to 84:25.

Carillo testified that he took photographs at Coup’s request, and that he was not really sure what he was photographing. See Jury Trial (Doc. # 71-1) at 132:13-17. Carillo testified that on May 23, 2002, agents destroyed the plants and defendant did not have a chance to test them. Id. at 159:23 to 161:5.

DEA Special Agent Michael Scalise testified that he was responsible for video taping the marijuana grow. Id. at 168:13-16. Specifically, Scalise stated that he was charged with filming “the grow in the residence and components of the grow, the plants, the roots, the stems, the leaves of that grow.” Id. Scalise testified that the purpose of his video tape was to “document it for court purposes, to show that the plant had a root structure, a stem and leaves.” Id. at 169:1-5. Scalise testified that he was not charged with documenting the number of plants in the video. Id. at 172:9-13. Coup testified that the video did not show the counting of the plants, and he wished he would have done that. See Jury Trial — Testimony of Brent Cowp (Doc. # 69) at 86:3-17.

At the close of evidence, at the jury instruction conference, defense counsel moved for a directed verdict of acquittal based on insufficient evidence. See Jury Trial — Defendant’s Motion For Directed Verdict For Acquittal And Instruction Conference (Doc. # 70) filed December 12, 2005 at 2:4-10. Counsel argued that the evidence was insufficient to support a finding of 100 or more plants because the government did not present expert testimony that each plant was marijuana. Id. at 2:10 to 4:8, 5:2 to 20. The Court ruled that construed in the light most favorable to the government, the record contained ample evidence that the plants in question were marijuana. Id. at 5:23 to 6:3.

Defense counsel then stated that to preserve the issue for appeal, he was requesting that the Court dismiss the case “as a denial of due process based on the destruction of the evidence.” Id. at 6:9-12. Counsel stated that in a couple of cases involving destruction of marijuana, the Tenth Circuit had found no bad faith, but he wanted to preserve the record in case “they” found bad faith in this case. Id. at 6:20-22. Counsel did not propose a jury instruction regarding spoliation of evidence, so it is not clear whether counsel intended for the jury or the Tenth Circuit to address the question of bad faith destruction of evidence. In any case, counsel implied that he did not think bad faith was present and he stated that he was not going to argue the issue any longer. Id. at 6:7-22. The Court stated that counsel had made his record and observed that it had heard no evidence which suggested bad faith. Id. at 6:23-25.

In closing argument, Sachse argued that the government had not proved that defendant had 100 plants. See Jury Trial (Doc. # 71-1) at 240:4 to 246:16. He pointed out that agents had retained samples of only ten plants, and that the forensic chemist had testified that she would not state that a plant was marijuana unless she had tested it. Id. at 240:4 to 241:16. Sachse asserted that because agents had not video taped the counting or filled in the placards, the jury could not determine whether agents had correctly counted the plants. Id. at 241:21 to 244:9. Sachse asserted that the government had destroyed the plants without keeping any documentation of quantity, and that the jury should not blindly trust that the agents had accurately counted the plants. See id. at 243:5-9, 246:10-16.

The jury rejected Sachse’s arguments and found defendant guilty as charged. See Docs. # 44 and # 47 filed January 19, 2005.

C. Post-Trial Proceedings

On June 9, 2005, the Court sustained defendant’s motion for acquittal and vacated the jury verdict. See Memorandum And Order (Doc. # 61). On appeal, the Tenth Circuit reversed and remanded for sentencing. See United States v. Montgomery, 468 F.3d 715 (10th Cir.2006). Because defendant had a prior felony conviction, Section 841(b)(1)(B) imposed a mandatory minimum of ten years in prison. See 21 U.S.C. § 841(b)(1)(B) (effective Nov. 2, 2002 to March 8, 2006). Consequently, the Court sentenced defendant to 120 months in prison and eight years on supervised release. See Judgment (Doc. # 85) filed March 1, 2007.

Defendant appealed, arguing that (1) the search warrant and affidavit in support thereof lacked probable cause in violation of the Fourth Amendment; (2) the Court erred by not giving the jury a special verdict form which would have allowed it to find that defendant distributed a small amount of marijuana without remuneration; and (3) during her examination of witnesses and in closing argument, the prosecutor undermined the fairness and integrity of the trial by denigrating defense counsel. See United States v. Montgomery, 262 Fed.Appx. 80, 83 (10th Cir.2008). The Tenth Circuit affirmed. See id. at 83-86. Defendant did not petition the Supreme Court for certiorari review.

On July 10, 2008, defendant filed his motion for relief under 28 U.S.C. § 2255. See Doc. # 111. In that motion, defendant argues that trial counsel was ineffective in (1) not seeking a new trial and (2) not letting defendant testify at trial. Defendant also claims that the United States violated his constitutional rights by destroying the marijuana plants and/or not keeping a physical record which showed how agents counted the plants. On May 8, 2009, the Court overruled the motion regarding counsel’s failure to seek a new trial. See Memorandum And Order (Doc. # 121) at 12-14. Regarding the claim that counsel did not let defendant testify at trial, the Court ordered an evidentiary hearing to determine (1) whether counsel prevented defendant from testifying; and (2) whether there was a reasonable probability that the jury would have reached a different verdict if defendant had testified about the number of marijuana plants. See id. at 19. Regarding the claim that the United States unconstitutionally destroyed evidence, the Court construed it as one of ineffective assistance of counsel. Specifically, it framed the issue as whether trial counsel was ineffective in not arguing that the government had violated defendant’s constitutional rights by destroying the marijuana plants. See id. at 20. The Court ordered an evidentiary hearing to determine (1) whether counsel acted reasonably in not arguing that the government’s destruction of evidence violated defendant’s constitutional rights; and (2) whether there is a reasonable probability that the outcome would have been different if counsel had raised that argument. See id. at 22. The Court appointed counsel, William F. Cummings, to represent defendant at the Section 2255 hearing. See id. at 19-20; Doc. # 122. As noted, on June 5 and August 28, 2009, the Court held an evidentiary hearing.

D. Evidence At Section 2255 Hearing 1. Defendant’s Testimony

At the Section 2255 hearing, defendant testified as follows:

a. Number Of Plants

Defendant was growing marijuana in the back room of his home. See Testimony of Daniel Montgomery at Section 2255 Hearing on June 5, 2009 at 7:3-5. Every day, he counted the plants to make sure they were all there. Id. at 7:18-23. On May 5, 2003, he counted 91 plants. Id. at 7:24-25, 20:13-14. Of the 91 plants, five were in dirt and 86 were in hydroponic trays. Id. at 8:20-21. Of the five plants in dirt, two were mother plants from which defendant made cuttings to clone additional plants. Id. at 8:22 to 9:7. In addition to the 91 plants, defendant had ten cuttings on May 5, 2003. Id. at 9:12-13. That morning, defendant looked at the cuttings and did not discern any growth in them. Id. at 9:15-18. The ten cuttings were in grow blocks, however, and he did not dig down to see if they had roots. Id. at 15:22 to 16:10. Therefore, defendant did not know whether the cuttings had roots. Id. at 16:2. He did not notice any fresh growth on top of the plants, which usually indicates root growth. Id. at 16:2-6. Defendant admitted that if all of the ten cuttings had roots, he had 101 plants. Id. at 16:19— 22.

Government Exhibit 48 is a photograph which shows ten cuttings or small plants lying in a plastic tray. Id. at 16:23 to 17: 6. Defendant initially said that he recognized them as the cuttings that were in the small room with the mother plants. Id. at 16:25 to 17:6 Defendant then stated that he did not know whether Exhibit 48 depicted the cuttings or some experimental plants on which he had cut the buds from a growing plant, rooted them and tried to grow just the bud. Id. at 17:11-15. Defendant stated that the experimental plants had roots, were three to ten inches tall and were part of the 86 plants which he had growing in hydroponic trays. Id. at 17:18-21, 24:23 to 25:20. Defendant agreed that some plants in Exhibit 48 had roots on them, but he could not see that all of them had roots. Id. at 20:7-8. Defendant stated that because the plants in Exhibit 48 had buds on them, they were not the ten cuttings. Id. at 18:9-11. Defendant stated that if Exhibit 48 showed the ten cuttings from the room with the mother plants, and if they all had roots (which he could not tell), they should be included in the total number of plants. Id. at 20:7-8; 26:13-18.

b. Defendant’s Desire To Testify At Trial

On the second day of trial, defendant asked Sachse what he was planning for the defense. Id. at 9:23 to 10:4. Sachse replied that he was not going to call any witnesses. Id. at 10:4-5. Defendant became upset and told Sachse that he wanted to testify. Id. at 10:6-14. Defendant insisted on testifying because he believed that the jury needed to hear his side of the story. Id. at 10:10-14, 22:19-23. Sachse responded that if defendant insisted on testifying, he would walk off the case. Id. at 12:13-14, 13:2-3, 23:4-8, 27:24 to 28:1, 34:10-12. Sachse stated that he was running the case, that he did not think the government had proven its case and that he was not going to call any witnesses. Id. at 12:14-17. Defendant was stunned and did not respond. Id. at 23:10-12, 34:13. Defendant was afraid of losing his lawyer and did not bring up the issue again. Id. at 12:21-23; 28:4-6. Nobody explained to defendant that he had a right to testify. Id. at 13:4-7.

If defendant had testified, he would have told the jury that he knew that he had 91 plants because he counted them every day and intentionally kept the number under 100 to avoid federal charges. Id. at 10:17-22. Defendant did not include the ten cuttings in his total number because he had never seen any kind of root development on them and did not know whether they had developed roots. Id. at 11:4-7. Because the government destroyed the plants, defendant did not have an opportunity to inspect the cuttings to determine whether they had roots. Id. at 10:23 to 11:10.

2. Sachse’s Testimony

At the Section 2255 hearing, Sachse testified as follows:

a. Defendant’s Desire To Testify At Trial

Prior to trial, Sachse had several conversations with defendant regarding whether he should testify. See Testimony of Mark Sachse at Section 2255 Hearing on June 5, 2009 at 4:10-11, attached to Defendant’s Supplemental Memorandum (Doc. # 132). Sachse did not want defendant to testify because he had a prior drug trafficking offense. Id. at 12:13-17, 19:11— 16. Sachse understood that defendant had agreed that he would not testify. Id. at 26:10-12.

During trial, defendant told Sachse that he wanted to testify as an expert on how marijuana plants grow. Id. at 16:19-22. Sachse replied that he thought it was a bad idea. Id. at 16:22-23, 27:5-8. Sachse never said that he would quit representation if defendant testified. Id. at 18:8-11, 28:4-5, 35:6-9. Defendant did not argue back. Id. at 28:3. Sachse does not remember having a heated conversation about whether defendant should testify. Id. at 18:12-22. Sachse did not ask the Court to discuss defendant’s right to testify with him. Id. at 20:15-17. Sachse would have done so if he and defendant had a heated discussion about defendant wanting to testify at trial. Id. at 20:19-23.

Sachse always told his clients that they had an absolute right to testify. Id. at 19:2-7. He told them that as their attorney, he was in charge of all strategic trial decisions except whether they should testify. Id. at 19:2-7, 33:3-12. In federal cases, Sachse told his clients that if they testified they could receive a sentence enhaneement if the judge believed that their testimony obstructed justice. Id. at 19:8-11. In this case, Sachse advised defendant that he was in charge of the ultimate decision whether to testify. Id. at 33:13-15. If defendant had insisted on testifying, Sachse would have made a record of it and allowed him to testify. Id. at 33:16-20.

b. Not Filing A Motion To Dismiss Based On Destruction Of Evidence

Sachse did not file a motion to dismiss based on destruction of evidence because in closing, he planned to argue that the government had not met its burden of proof that defendant had at least 100 plants. See id. at 5:23 to 6:4. Sachse stated that in a very similar case before Judge Lungstrum, United States v. McCoy, he had prevailed on a similar argument. Id. at 6:5-8, 38:8-22. Specifically, Sachse testified that on a pretrial motion in McCoy, United States District Judge John W. Lungstrum found that the government had not met its burden of proving 100 plants, so the case was resolved by a plea to a below-the-minimum count. Id. at 38:14-22. Sachse stated that because of his experience in McCoy, he knew that the DEA and KBI routinely destroy marijuana plants in every case, Id. at 6:11-14, and that he did not think that Montgomery could show that agents in his case had destroyed the plants in bad faith. More specifically, Sachse explained as follows:

My anticipated defense was that we were going to put the prosecution to the proof and argue that they had not proven that there were 100 plants. My recollection — I had actually had a very similar case, maybe a year or so before in this district, there arose out of Bourbon County with 100 plants and I had been down this road before.

My recollection of the state of law at the time was, to prevail on a destruction of evidence claim, you had to show bad faith. And from that prior case, I was aware that there was the protocols of DEA and KBI was [sic] to do this in every case. And I didn’t think we could make a bad faith rule.

Id. at 6:2-15. Sachse stated that based on his review of the evidence in this case, agents had followed established protocol under state and federal law, Id. at 31:22 to 32:2, and based on his experience in McCoy, defendant would have to show bad faith to prevail on motion to dismiss based on destruction of evidence. Id. at 37:25 to 38:10. Sachse testified that he had researched the destruction issue but he did not remember any of the cases. Id. at 6:21-25. Sachse supposed that the cases would be in his file, but he did not have it at the hearing. See id. at 7:1-2.

On cross-examination, Sachse testified that due to his involvement in McCoy, he was intimately familiar with the destruction of evidence issue, what was required with such a motion and how unlikely it would be to succeed. Id. at 30:5-8. Sachse testified that he elected to not file a motion to dismiss because it would be frivolous and he knew that the Court would not grant it. Id. at 30:5-15. Sachse stated that he believed that he could win on an insufficient evidence argument and did not want to distract the court with an illegitimate motion to dismiss:

In this case, I actually thought we had an excellent chance to prevail upon the Court, even before this case got to the jury, that there was insufficient evidence of quantity. This was the time frame when we were [under] Apprendi and we were talking about what was required for mandatory mínimums. And — well, my belief was always, if you actually have a legitimate issue, don’t deflect attention from the legitimate issue.

Id. at 30:18 to 31:1. Sachse testified that he did not file a motion to dismiss based on destruction of evidence because he did not think that he could show that agents had destroyed the plants to misrepresent the number:

I don’t think there was — there was any evidence that the agents destroyed the plants to misrepresent the number. I mean, my argument was if they destroyed them, we don’t have them and they can’t prove their case.

Id. at 31:17-21. Sachse testified that his review of the evidence showed that agents had followed established protocol with regard to marijuana grows in the State of Kansas and in the Tenth Circuit, and that he believed that he had no chance of prevailing on motion to dismiss based on destruction of evidence. Id. at 31:22 to 32:5.

Sachse testified that in February of 2006, he was diagnosed with leukemia and by June of 2006, he had quit practicing law. See Testimony of Mark Sachse at Section 2255 Hearing on June 5, 2009 at 2:24 to 3:1. Sachse stated that in June of 2006, he had several disciplinary complaints which he did not want to contest. Id. at 3:1-5. Many of the complaints stemmed from clients whom he represented at the time he was diagnosed, and several were similar in nature and involved allegations regarding lack of diligence and improper withdrawal. Id. at 3:6-11.

Prior to trial, in June of 2001, the Kansas Supreme Court had placed Sachse on two-year supervised probation due to seven client complaints regarding violation of professional duties including competence, diligence, communication, fees, safekeeping property, terminating representation, expediting litigation and misconduct. See In re Sachse, 269 Kan. 810, 8 P.3d 745 (2000) (citing KRPC 1.1, 1.3, 1.4, 1.5, 1.15, 1.16, 3.2 and 8.4). Prior to that, disciplinary authorities had informally admonished Sachse on two occasions for violating professional duties involving communication and safekeeping of property. See id., 269 Kan. at 825, 8 P.3d at 754 (citing KRPC 1.4 and 1.15(c)). In June of 2003, the Kansas Supreme Court terminated the supervised probation. See In re Sachse, 276 Kan. 5, 72 P.3d 551 (2003).

In June of 2006, the Kansas Supreme Court suspended Sachse’s license to practice law for one year. See In re Sachse, 281 Kan. 1197, 135 P.3d 1207 (2006). In that proceeding, two clients complained about Sachse’s actions in 2002, 2003 and 2004. Sachse did not contest allegations that he had violated professional duties involving competence, diligence, promptness, communication, expediting litigation, disclosure and misconduct. See id., 281 Kan. at 1197, 135 P.3d at 1207 (citing KRPC 1.1, 1.3, 1.4, 3.2, 8.1(b) and 8.4(g)).

In September of 2007, Sachse voluntarily surrendered his license to practice law. See In re Sachse, 284 Kan. 906, 167 P.3d 793 (2007). At that time, the Disciplinary Administrator’s office had filed a formal complaint against him based on 17 separate complaints. The formal complaint alleged that Sachse had violated professional duties involving competence, diligence, communication, fees, declining or terminating representation, expediting litigation, truthfulness in statements to others, engaging in conduct prejudicial to the administration of justice and failing to cooperate with disciplinary investigations. See id., 284 Kan. at 906, 167 P.3d at 793 (citing KRPC 1.1, 1.3, 1.4, 1.5, 1.16, 3.2, 4.1, 8.4(d) and Kansas Supreme Court Rule 207). On September 27, 2007, the Kansas Supreme Court accepted Sachse’s surrender of his license, disbarred him and revoked his license to practice law in Kansas. See id.

3. DEA Policy Regarding Destruction Of Marijuana Plants

At the Section 2255 hearing, DEA special agent and group supervisor, Spring Williams, testified that the government had destroyed the marijuana plants pursuant to DEA protocol. See Transcript of Section 2255 Hearing on August 8, 2009 at 4:6-9, 6:20-23, 9:18-21. Williams testified that Section 6662.69 of the DEA manual directs agents to destroy marijuana plants because toxic pesticides or molds may grow on them. Id. at 6:20 to 7:20, 8:11— 15. Williams testified that Government Exhibit 2 indicates how agents should photograph marijuana plants. Id. at 11:23 to 12:1. Williams stated that under Exhibit 2, agents should photograph and, if possible, video tape marijuana plants in their entirety in place. Id. at 12:2-6. Williams did not address the fact that Subsection (C)(2) of Exhibit 2 states that in cases involving marijuana, agents are to follow the procedures set forth in Section 6662.69.

With regard to preservation of indoor marijuana plants, Section 6662.69 requires that agents photograph the plants and their root systems in a way that obtains and preserves an accurate count:

For indoor grows in particular, marijuana plants and their root systems will be photographed so that an accurate count may be obtained and preserved for prosecution. * * *

Government’s Exhibit 1, DEA Agents Manual § 6662.69.1(B).

At the Section 2255 hearing, Williams testified that she had reviewed the DEA file and determined that the plants in this case were destroyed pursuant to DEA policy. Id. at 6:20 to 7:1, 9:18-21. Williams stated that Coup complied with DEA policy and that she would have destroyed the plants in the exact same manner. See id. at 9:18-25. Williams admitted, however, that in a case charging 101 marijuana plants, photographing the plants in a manner so that an accurate count could be obtained and preserved would be very important. See id. at 16:8-13, 17:21 to 18:4. Williams stated that she had reviewed the photographs taken in this case and believed that they complied with Section 6662.69.1(B), and that an accurate count could be made based on the photographs. See id. at 19:10-16. When asked whether one could count the plants based on the photographs, Williams stated that she did not know because she had not tried to do so. See id. at 19:19-21.

At trial, Coup admitted that based on the photographs and/or video tape taken in this case, one could not count the plants. See Jury Trial — Testimony of Brent Coup (Doc. # 69) at 85:1 to 86:17. At the Section 2255 hearing, government counsel asserted that Coup had testified at trial that he believed that he destroyed the plants in accordance with DEA protocol. See Transcript of Section 2255 Hearing on August 8, 2009 at 30:20 to 31:15. The Court has reviewed the trial transcript and finds no such testimony. Coup testified that agents took samples of the plants in accordance with DEA protocol. See Jury Trial — Testimony of Brent Coup (Doc. # 69) at 92:1-10. He did not testify whether agents followed DEA policy regarding photographing and/or destroying the plants.

E. United States v. McCoy

In United States v. McCoy, 01-20132-JWL, Sachse represented Lester McCoy. The Second Superseding Information (Doc. # 15), filed January 29, 2002, charged McCoy with unlawfully manufacturing an unspecified quantity of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. § 2. McCoy entered a plea of guilty to the charge. See Plea Agreement attached to Petition To Enter Plea Of Guilty And Order Entering Plea (Doc. # 22) filed February 4, 2002 in 01-20132-JWL. According to the plea agreement, had the matter proceeded to trial, the government would have presented evidence that on July 16, 2001, officers executed search warrants on two properties: one at McCoy’s residence in Linn County, and one in Bourbon County in a wooded area 250 yards southwest of the defendant’s residence. Officers seized 138 marijuana plants: 27 from Linn County and 111 from Bourbon County. Id. ¶ 3. According to the plea agreement, the Kansas Bureau of Investigation (“KBI”) retained all 138 of the marijuana plants. See id. For sentencing purposes, the government anticipated defendant’s argument that he was responsible for plants only in Linn County. See Sentencing Memorandum (Doc. #26) filed May 10, 2002 in No. 01-20132-JWL at 4. The government noted that the second superseding information did not specify a quantity of plants, so the plea agreement did not require defendant to admit responsibility for a certain quantity. See id.

To its sentencing memorandum in McCoy, the government attached a copy of KBI policy which outlined the following procedure for disposition of marijuana field evidence:

1.The standing plants will be photographed and if possible videotaped.

2. The seized plants will be stacked in piles of ten. Individual plants will be identified by having their own root structure.

3. A sampling will be taken from at least one plant from each stack.... If there is a chance the case may go to federal, i.e. 400 plants, then two law enforcement officers should be videotaped making an actual count of the plant by root structure. * * *

4. Destruction of the plants would normally be by burning and cleared through the local fire marshal’s office. * * *

Exhibit A to Sentencing Memorandum (Doc. # 26) (emphasis added).

At sentencing, McCoy objected to his base offense level, which attributed 138 plants to him. See Objections To Presentence Investigation (Doc. #27) filed May 17, 2002 in No. 01-20132-JWL. On May 20 and June 17, 2002, Judge Lungstrum held a contested sentencing hearing. Defendant testified that he had planted six marijuana plants on his property in Linn County, but none in Bourbon County. See Transcript of Sentencing Hearing on June 17, 2002 at 4:18 to 5:6. Defendant stated that he knew that wild marijuana was growing on his property in Linn County. Id. at 6:13-21. Defendant testified that he did not smoke marijuana and that he just watered the plants to see if they would grow. Id. at 5:7-9, 7:20-22, 11:17-20, 16:8-10. Judge Lungstrum found that the case was “unique” and concluded that (1) the government had not proven by a preponderance of the evidence that defendant was manufacturing 180-plus plants; and (2) defendant should be held accountable for only six plants. Id. at 19:7, 19:19-23, 20:9-16. Judge Lungstrum therefore gave defendant a guideline sentence of home detention for 60 days and probation for two years. See Judgment (Doc. # 32) filed June 19, 2002 in 01-20132 at 2-3.

II. Legal Standards

Section 2255 authorizes the Court to enter relief if it finds that “the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” 28 U.S.C. § 2255(b). The standard of review under Section 2255 is quite stringent. The Court presumes that the proceedings which led to defendant’s conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir.1989). To prevail, defendant must show a defect in the proceedings which resulted in a “complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974).

Section 2255 is not available to test the legality of matters which should have been raised on appeal. See United States v. Allen, 16 F.3d 377, 378 (10th Cir.1994) (citing United States v. Walling, 982 F.2d 447, 448 (10th Cir.1992)). In a Section 2255 petition, defendant is generally precluded from raising issues which he did not raise on direct appeal unless he can show cause for his procedural default and actual prejudice resulting from the alleged errors,-or that a fundamental miscarriage of justice will occur if the Court does not address his claim. See Allen, 16 F.3d at 378. The procedural default rule, however, does not apply to claims of ineffective assistance of counsel. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). Thus, defendant may proceed on his ineffective assistance claims in this proceeding regardless whether he raised them on direct appeal. See id.; United States v. Walters, 163 Fed.Appx. 674, 678 (10th Cir.2006).

III. Analysis

Defendant claims that trial counsel was ineffective in (1) not letting him testify at trial and (2) not filing a motion to dismiss based on the government’s destruction of evidence.

To establish ineffective assistance of counsel, defendant must show that (1) counsel’s performance was deficient and (2) a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To meet the first element, i.e. deficient performance, defendant must establish that counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. In other words, defendant must prove that counsel’s performance fell “below an objective standard of reasonableness.” Walling, 982 F.2d at 449. The Supreme Court recognizes “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see United States v. Rantz, 862 F.2d 808, 810 (10th Cir.1988). To satisfy the second prong of Strickland, defendant must show a reasonable probability that but for counsel’s errors, the jury would have reached a different verdict. A reasonable probability is one sufficient to undermine one’s confidence in the outcome. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. To determine whether counsel’s errors prejudiced defendant, the Court considers the totality of the evidence before the jury. See Strickland, 466 U.S. at 695, 104 S.Ct. 2052. As to the second element, the Court looks to whether counsel’s deficient performance rendered the result of the trial unreliable or the proceedings fundamentally unfair. See Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

A. Whether Trial Counsel Was Ineffective In Not Letting Defendant Testify At Trial

Defendant claims that trial counsel was ineffective in not letting him testify at trial. To prevail on this claim, defendant must show (1) that counsel prevented him from testifying at trial; and (2) a reasonable probability that the result would have been different if he had testified. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Memorandum And Order (Doc. # 121) at 19.

1. Whether Counsel Prevented Defendant From Testifying At Trial

To satisfy the first prong of Strickland, defendant must show that counsel prevented him from testifying at trial. A criminal defendant has a constitutional right to testify at trial on his own behalf. See Rock v. Arkansas, 483 U.S. 44, 49-52, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). The decision to testify lies squarely with defendant and not counsel. See Cannon v. Mullin, 383 F.3d 1152, 1171 (10th Cir.2004) (citing Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)). Counsel should inform defendant that he has the right to testify and that the decision belongs solely to him. See Cannon, 383 F.3d at 1171 (citing United States v. Teague, 953 F.2d 1525, 1533-34 (11th Cir.1992)). Counsel should also discuss the strategic implications of choosing whether to testify and make a recommendation to defendant. See id. Counsel lacks authority to prevent defendant from testifying, even if it would be suicidal trial strategy to do so. See Cannon, 383 F.3d at 1171 (citing United States v. Janoe, 720 F.2d 1156, 1161 & n. 10 (10th Cir.1983)).

In his Section 2255 motion, defendant asserts that (1) before the government rested its case, defendant told counsel that he wanted to testify on his own behalf; (2) counsel replied that he was running things and if defendant insisted on testifying, he would withdraw from the case; and (3) defendant did not press the matter because he was afraid to lose counsel at such a critical stage in the case. See Declaration ¶¶ 12-14, Exhibit 1 to Defendant’s Memorandum (Doc. # 111). In its previous order, the Court noted that if defendant’s declaration is true, counsel deprived him of the constitutional right to testify and such a dereliction of duty would satisfy the first prong of Strickland. See Memorandum And Order (Doc. # 121) at 16 (citing Cannon, 383 F.3d at 1171; United States v. Williams, 139 Fed.Appx. 974, 977 (10th Cir.2005); Nichols v. Butler, 953 F.2d 1550, 1553 (11th Cir.1992)). Thus the Court must decide whether defendant’s assertion — that counsel prevented him from testifying at trial — is true.

At the evidentiary hearing, defendant testified as follows: On the second day of trial, upon learning that Sachse did not plan to call any witnesses for the defense, defendant became upset and stated that he wanted to testify on his own behalf. See Testimony of Daniel Montgomery at Section 2255 Hearing on June 5, 2009 at 9:23 to 10:14. Sachse responded that he was running the case, that he did not think the government had proven its case and that he was not going to call any witnesses. Id. at 12:14-17. Sachse further stated that if defendant insisted on testifying, he would walk off the case. Id. at 12:13-14, 13:2-3, 23:4-8, 27:24 to 28:1, 34:10-12. Defendant was stunned and did not respond. Id. at 23:9-11, 34:12. Defendant was afraid of losing his lawyer and did not bring up the issue again. Id. at 12:21-23; 28:4-6. Nobody explained to defendant that he had a right to testify at trial. Id. at 13:4:6.

Sachse recalled a different version of events. Sachse testified that he did not want defendant to testify because he had a prior drug trafficking offense. See Testimony of Mark Sachse at Section 2255 Hearing on June 5, 2009 at 12:13-17, 19:11-16. Prior to trial, he and defendant discussed the issue and decided that defendant would not testify at trial. Id. at 4:10-11, 26:10-12. During trial, defendant told Sachse that he wanted to testify as an expert on how marijuana plants grow. Id. at 16:19-22. Sachse replied that he thought it was a bad idea. Id. at 16:22-23. Sachse did not threaten to quit if defendant testified. Id. at 18:8-11, 28:4-7, 35:6-9. Defendant did not argue back. Id. at 28:3. Sachse does not remember a heated conversation with defendant about this topic or anything else. Id. at 18:12-17. Sachse did not ask the Court to discuss defendant’s right to testify with him. Id. at 20:15-17. He would have done so if he had a heated discussion with defendant regarding defendant wanting to testify at trial. Id. at 20:19-23.

Determining whether counsel prevented defendant from testifying at trial boils down to a credibility determination between defendant and Sachse. Both recall that during trial, defendant stated that he wanted to testify on his own behalf. Their recollections differ about what happened next. Although it is a close call, the Court believes defendant’s testimony that Sachse threatened to quit if he insisted on testifying. Defendant’s testimony was consistent and specific in this regard. Defendant claimed that he did not argue back because he did not want to lose his lawyer in the middle of trial. Sachse admitted that defendant “doesn’t argue with people” and is a “very pleasant, passive guy” — and this fact is consistent with defendant’s testimony that he did not press the matter because he did not want to lose his attorney. Moreover, the Court notes that Sachse has a very long history of attorney discipline which involves complaints of improper withdrawal, communications terminating representation and truthfulness in communicating with others. On balance, the Court credits defendant’s testimony that Sachse threatened to walk off the case if defendant insisted on testifying at trial. Accordingly, defendant has satisfied the first prong of Strickland.

2. Whether The Outcome Would Have Been Different Had Defendant Testified

To satisfy the second prong of Strickland, defendant must show a reasonable probability that the outcome of the proceeding would have been different had he testified at trial. A reasonable probability is one sufficient to undermine one’s confidence in the outcome. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. To determine whether counsel’s errors prejudiced defendant, the Court considers the totality of the evidence before the jury. See id. at 695, 104 S.Ct. 2052. In other words, the Court examines the “breadth of evidence” and determines whether a reasonable probability exists that the case would have come out differently if defendant had testified. Coss v. Lackawanna County Dist. Atty., 204 F.3d 453, 462 (3d Cir.2000) (quoting United States v. Kauffman, 109 F.3d 186, 191 (3d Cir.1997)), rev’d on other grounds, 532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001).

In his Section 2255 motion, defendant asserts that his testimony would establish that he possessed 91 whole marijuana plants (including the mother plants) and eight cuttings/clones, for a total of 99 plants. See Defendant’s Memorandum (Doc. # 111) at 28. In its previous order, the Court found that because the number of plants was critical to the case, the outcome of the proceedings might have been different if defendant testified that he had only 99 plants. See Memorandum And Order (Doc. # 121) at 18-19. At the evidentiary hearing, however, defendant testified that he had 91 whole plants (including the mother plants) and ten cuttings, for a total of 101 plants. See Testimony of Daniel Montgomery at Section 2255 Hearing on June 5, 2009 at 7:24-25, 9:12-13.

Because defendant does not now dispute that he had a total of 101 plants/cuttings, the only issue upon which his testimony could have any possible bearing is whether the ten cuttings had formed roots. Defendant testified that he did not know whether the cuttings had roots. Id. at 16:2. On the morning of May 5, 2003, defendant looked at the cuttings and did not discern any growth in them. Id. at 9:15-18. The ten cuttings were in grow blocks and he did not dig down to see if they had roots. Id. at 15:20-24. The only way to tell for sure whether the cuttings had roots was to dig down and look at the roots. Id. at 16:7-10.

Standing alone, defendant’s testimony does not demonstrate a reasonable probability that the outcome would have been different had he testified. When viewed in light of his claim that counsel was ineffective in not pursuing a motion to suppress or a motion to dismiss based on destruction of evidence, however, the Court reaches a different conclusion. As discussed below, counsel performed deficiently by not pursuing such a claim and the record reveals a reasonable probability that the outcome would have been different had he done so. In light of this fact, defendant’s proposed testimony is sufficient to undermine the Court’s confidence in the outcome. Defendant credibly testified that he kept meticulous count of his plants, and that on the morning of May 5, 2003, he counted 91 whole plants and ten cuttings. Id. at 7:24-25, 9:12-13. Based on lack of new growth on the cuttings, defendant believed that they had not formed roots. Id. at 9:15-18, 16:2-6. The government destroyed the cuttings without photographing them in a way to demonstrate whether they had roots, and defendant did not have an opportunity to inspect whether the cuttings in fact had roots. Agents Coup and Carillo testified generally that they counted 101 plants with roots, stems and leaves, but they did not specify how many cuttings they found and whether all of the cuttings had roots. See Jury Trial — Testimony of Brent Coup (Doc. # 69) at 55:16-19; Jury Trial (Doc. # 71-1) at 158:6-8. Agent Carillo testified that there may have been cuttings which did not have roots. See Jury Trial (Doc. # 71-1) at 153:1-12. The government contends that Exhibit 48 shows ten distinct cuttings which had roots, but one cannot tell from the photograph whether the cuttings indeed have roots. In light of the fact that the government did not adequately preserve evidence regarding the number of plants and whether they had roots, defendant’s proposed testimony presents a reasonable probability that the outcome would have been different had he testified. The Court therefore sustains defendant’s claim that counsel was ineffective in not letting him testify at trial.

B. Destruction Of Evidence

Defendant claims that trial counsel was ineffective because he did not file and prosecute a motion to dismiss or a motion to suppress based on the government’s destruction of evidence and/or failure to preserve or photograph evidence. To satisfy Strickland, defendant must show (1) that counsel performed deficiently by not filing and prosecuting the motion and (2) a reasonable probability that if counsel had pursued such motion, the result of the proceeding would have been different. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To evaluate the second prong, ie. whether defendant suffered prejudice as a result of counsel’s failure to act, the Court must look to the merits of the omitted issue. See United States v. Orange, 447 F.3d 792, 797 (10th Cir.2006). If the omitted issue lacks merit, counsel’s failure to pursue it was not prejudicial and thus was not ineffective. See id.

In Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), the Supreme Court found that to satisfy the second prong of Strickland on a claim involving counsel’s alleged failure to file a motion to suppress evidence under the Fourth Amendment, defendant must show (1) that the overlooked motion to suppress would have been meritorious; and (2) a reasonable probability that the jury would have reached a different verdict absent introduction of the unlawful evidence. 477 U.S. at 375, 106 S.Ct. 2574. Here, defendant’s claim that counsel failed to file and prosecute a motion to dismiss based on destruction of evidence is analogous to the failure to file a motion to suppress under the Fourth Amendment. See, e.g., United States v. Cook, 45 F.3d 388, 392-93 (10th Cir.1995) (applying similar standard to appellate counsel’s alleged failure to raise issue on appeal); Cutler v. Hill, No. CV 07-0193-MA, 2009 WL 523101, at *3 (D.Or. March 2, 2009) (applying Kimmelman to claim that counsel was ineffective in withdrawing motion to suppress regarding destruction of evidence). Accordingly, to prevail on the second prong of Strickland, defendant must show (1) that the government unconstitutionally destroyed evidence and/or did not preserve or photograph evidence; and (2) a reasonable probability that the outcome would have been different had counsel filed and prosecuted a motion to dismiss or a motion to suppress based on destruction of evidence. The Court will first address the second prong of Strickland and decide the merit of the underlying constitutional claim.

1. Second Prong Of Strickland— Whether Defendant Suffered Prejudice As A Result Of Counsel Not Filing A Motion To Dismiss Based On Destruction Of Evidence

As noted, to satisfy the second prong of Strickland, defendant must show (1) that the government unconstitutionally destroyed evidence and/or did not preserve or photograph evidence; and (2) a reasonable probability that the outcome would have been different had counsel filed and prosecuted a motion to dismiss and/or a motion to suppress based on the government’s destruction of evidence. See Kimmelman, 477 U.S. at 375, 106 S.Ct. 2574.

a. Merit Of Underlying Claim

To satisfy the second prong of Strickland, defendant must show that the government unconstitutionally destroyed evidence and/or did not preserve or photograph evidence. Under the due process clause, criminal prosecutors must comport with prevailing notions of fundamental fairness. See California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). This standard of fairness requires that criminal defendants be afforded a meaningful opportunity to present a complete defense. See id. To safeguard that right, the Supreme Court has developed “what might loosely be called the area of constitutionally guaranteed access to evidence.” Id. (quoting United States v. Valenzuela-Bemal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982)). Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system. Id.

In California v. Trombetta, the United States Supreme Court found that the due process clause requires the government to preserve potentially exculpatory evidence on behalf of defendants. The Supreme Court stated that the constitutional duty to preserve evidence must be limited to evidence which might play a significant role in the suspect’s defense. See id., 467 U.S. at 489, 104 S.Ct. 2528. To meet this standard of constitutional materiality, destroyed evidence must (1) possess exculpatory value which was apparent before it was destroyed; and (2) be of such a nature that defendant could not obtain comparable evidence by other reasonably available means. Id. In Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the Supreme Court extended Trombetta and held that in eases where the exculpatory-value of evidence was indeterminate and all that can be confirmed is that the evidence was “potentially useful” for the defense, defendant must show that the government acted in bad faith in destroying the evidence. In other words, the Supreme Court found that in cases involving the failure to preserve “potentially useful” evidence — ie. evidentiary material of which no more can be said that it could have been subjected to tests which might have exonerated defendant — due process is not violated unless defendant can show that law enforcement acted in bad faith in destroying the evidence. See id. at 57-58, 109 S.Ct. 333. In Youngblood, defendant made no suggestion of bad faith and the Supreme Court concluded that the failure to preserve potentially useful evidence did not violate due process. See id. at 58, 109 S.Ct. 333.

Defendant contends that Trombetta applies to his destruction of evidence claim. Under this theory, to show that the government violated his due process rights, defendant must show that (1) the marijuana plants possessed exculpatory value which was apparent before they were destroyed; and (2) defendant could not obtain comparable evidence by other reasonably available means. See Trombetta, 467 U.S. at 489, 104 S.Ct. 2528. Defendant does not specifically address how the destroyed evidence had “apparent” exculpatory value. He seems to assert that this standard is met because the total number of plants — 101—was so close to the minimum number required for his conviction, each and every plant was essential to the prosecution. See Defendant’s Supplemental Memorandum (Doc. # 132) at 4.

In cases involving the destruction of marijuana plants, courts have generally found that Youngblood — rather than Trombetta — applies, ie. that the destroyed marijuana plants constitute only potentially useful evidence as opposed to evidence with apparent exculpatory value, and that defendants must therefore show bad faith to establish a due process violation. See, e.g., United States v. Gallant, 25 F.3d 36, 38-39 (1st Cir.1994); United States v. Scoggins, 992 F.2d 164, 167 (8th Cir.1993); United States v. Smith, 966 F.2d 1045, 1049 (6th Cir.1992); United States v. Belden, 957 F.2d 671, 673 (9th Cir.1992). The Court’s research revealed only one case, United States v. Belcher, 762 F.Supp. 666 (W.D.Va.1991), which applied Trombetta to the destruction of marijuana plants. In that case, state officials destroyed the plants before conducting any tests to confirm that they were even marijuana. See id. at 668. The district court distinguished Youngblood, finding that (1) the destroyed evidence in Youngblood was not part of the government’s case-in-chief whereas in Belcher, the government needed to use testimony regarding the plants to convict defendants; and (2) as opposed to merely “potentially useful” evidence, the destroyed marijuana plants were crucial and determinative to the outcome in Belcher. Id. at 672. The district court concluded that Youngblood did not apply where officials intentionally destroyed evidence that was absolutely critical and determinative to the prosecution’s outcome. Id. at 672.

Belcher supports defendant’s argument that because the destroyed plants were crucial to the prosecution, the plants had apparent exculpatory significance and the Youngblood bad faith requirement does not apply. The weight of authority, however, goes the other way. The Court agrees with the majority of courts and finds that before they were destroyed, the marijuana plants constituted potentially useful evidence but did not have apparent exculpatory significance. Accordingly, to prevail on his destruction of evidence claim, defendant must show that the government acted in bad faith in destroying the marijuana plants. See Youngblood, 488 U.S. at 57-58, 109 S.Ct. 333.

The inquiry into bad faith must necessarily turn on the government’s knowledge of the exculpatory value of the evidence at the time it destroyed it. See United States v. Bohl, 25 F.3d 904, 911 (10th Cir.1994) (citing Youngblood, 488 U.S. at 57, 109 S.Ct. 333). Defendant bears the burden to prove bad faith by the government. See Bohl, 25 F.3d at 913. Mere negligence in failing to preserve evidence is insufficient. See id. at 912.

In Bohl, the Tenth Circuit found that the government had destroyed potentially useful evidence in bad faith. The government charged that defendants defrauded the government with respect to a contract to build radar and radio transmission towers for the Federal Aviation Administration, in violation of 18 U.S.C. § 286 (conspiracy to defraud the United States), 18 U.S.C. §§ 287 and 2(b) (submitting false claims for payment from the United States and aiding and abetting) and 28 U.S.C. § 1341 (mail fraud). Before trial, the government destroyed certain tower legs which allegedly did not conform with contract specifications. Before the government destroyed them, defendants had repeatedly requested access to the towers and asked the government to preserve evidence regarding the chemical composition of the towers. The district court denied defendants’ motion to dismiss, finding that they had access to comparable evidence with photographs of the towers, small samples and government test results. See Bohl, 25 F.3d at 908. The district court also denied defendants’ motion for judgment of acquittal, finding no evidence that the government intended to destroy the towers. See id. at 909. On appeal, the Tenth Circuit reversed, finding clear error. The Tenth Circuit identified five factors relevant to the bad faith determination: (1) whether the government had explicit notice that defendant believed the evidence to be potentially exculpatory; (2) whether defendant’s assertion that the evidence possessed potential exculpatory value was merely conclusory or was supported by objective, independent evidence; (3) whether the government had possession of or the ability to control disposition of the evidence at the time it received notice of its potential exculpatory value; (4) whether the destroyed evidence was central to the government’s case; and (5) whether the government offers an innocent explanation for its failure to preserve the evidence. See United States v. Beckstead, 500 F.3d 1154, 1159-61 (10th Cir.2007); Bohl, 25 F.3d at 911-13. Applying these factors, the Tenth Circuit found that before the government destroyed the towers, defendants provided explicit notice, backed with objective, independent evidence which suggested that further tests might lead to exculpatory evidence. See Bohl, 25 F.3d at 911. Moreover, the Tenth Circuit found that the destroyed evidence was central to the government’s case and the government offered no reasonable rationale or good faith explanation for the failure to preserve it. See Id. at 912-13. On those facts, the Tenth Circuit concluded that the circumstances gave rise to a logical conclusion of bad faith. See Id. at 913.

Applying Bohl to this case, defendant did not provide explicit notice that the plants were potentially exculpatory before the government destroyed them. Defendant did not have an opportunity to do so, however, because the government destroyed the plants 18 days after it seized them, almost four months before it indicted defendant. Even though the government did not know whether defendant believed that the evidence was potentially exculpatory and even if the marijuana plants did not possess “apparent” exculpatory value, a reasonable officer would clearly understand that evidence regarding the number of plants was critical to the case and that the plants had potential exculpatory value to defendant. DEA policy reflects this fact. Section 6662.69 states that “preservation of the root system is critical” and establishes procedures “to ensure that the root system is maintained when marijuana plants are seized.” DEA Agents Manual § 6662.69.1, Government’s Exhibit 1. The policy authorizes destruction of the plants only after completion of sampling and photographing. See id., subsection (D). With regard to indoor grows in particular, the policy expressly requires agents to photograph the plants and their root systems so that an accurate count may be obtained and preserved for prosecution. See id., subsection (B). As noted, this case involved only one plant more than the 100 plants necessary to impose significant minimum statutory penalties. Moreover, ten of the alleged plants involved cuttings for which identification of root systems was