## Facts

- Officers conducted an aerial survey in Monroe County, West Virginia, and identified cultivated patches believed to be marijuana.
- Law enforcement seized and destroyed 36 plants from Robert H. Fry’s land and approximately 3,600 plants from land owned by Ernie Aguilar; none were chemically tested before destruction.
- Fry was indicted for manufacturing marijuana and conspiring to manufacture and distribute marijuana under 21 U.S.C. §§ 841(a) and 846; Aguilar and Tom Curran were listed as unindicted co-conspirators.
- Aguilar pleaded guilty in related proceedings and received a three-year sentence.
- Curran received use immunity and, along with Aguilar, testified against Fry at trial.
- A jury convicted Fry on both counts, and the district court sentenced him to five years’ imprisonment.

## Issues

1. Whether federal criminal prohibitions on producing and distributing marijuana violate the Fifth Amendment’s Due Process Clause or equal protection principles, or create an impermissible “gross arbitrary control” in violation of asserted Ninth Amendment liberty interests.
2. Whether evidence was sufficient to prove the seized plants were marijuana when the plants were destroyed without chemical analysis and the proof relied on testimony and visual identification.

## Decision

- The Fourth Circuit affirmed Fry’s convictions and sentence.
- The court rejected the constitutional challenge, holding there is no fundamental right to produce or distribute marijuana commercially and that the statutes withstand rational-basis review.
- The court held the evidence was sufficient to prove the plants were marijuana despite the absence of chemical testing, because testimony and circumstances supported the jury’s finding beyond a reasonable doubt.

## Legal Principles

- There is no fundamental constitutional right to produce or distribute marijuana commercially.
- Because marijuana producers are not a suspect class and no fundamental right is implicated, constitutional challenges to federal marijuana prohibitions are evaluated under rational-basis review.
- The Ninth Amendment does not independently establish a substantive right to use, cultivate, produce, or distribute controlled substances.
- Chemical analysis is not required in every case to prove a substance is marijuana; credible visual identification and testimonial and circumstantial evidence can be sufficient.

## Conclusion

The Fourth Circuit sustained federal marijuana manufacturing and conspiracy convictions by applying rational-basis review to reject constitutional attacks on marijuana prohibitions and by holding that marijuana identity may be established through testimonial and circumstantial proof even when seized plants were destroyed without chemical testing.


United States v. Fry, 787 F.2d 903 (4th Cir. 1986)