In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-2786

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROGER D. SANAPAW,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02 CR 242—William C. Griesbach, Judge.

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ARGUED JANUARY 21, 2004—DECIDED APRIL 27, 2004

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Before FLAUM, Chief Judge, and POSNER and RIPPLE,

Circuit Judges.

FLAUM, Chief Judge. In 2003, a jury found Roger D.

Sanapaw guilty of two counts of knowingly and intentionally distributing marijuana. Sanapaw now appeals and

challenges the jury instruction given at his trial defining

marijuana as well as the sufficiency of the evidence showing

that the substance he distributed was marijuana. For the

reasons stated herein, we affirm.
2 No. 03-2786

I. BACKGROUND

In the summer of 2002, Jamie Matchopatow contacted the

Menominee Tribal Police Department and informed police

officers that Roger Sanapaw was selling marijuana on the

Menominee Reservation. Matchopatow claimed that he had

purchased marijuana from Sanapaw on at least one prior

occasion, and agreed to take part in two more transactions

with Sanapaw while police officers observed. On July 3,

2002 and July 23, 2002, officers provided Matchopatow with

money and a tape-recording device and waited outside

Sanapaw’s house while Matchopatow went inside. When

Matchopatow entered Sanapaw’s house, he asked Sanapaw

if he had drugs. Sanapaw replied that he had “20’s”, which

Matchopatow explained at trial meant $20 bags of marijuana. On July 3, 2002, Matchopatow exchanged $40 for two

$20 bags of marijuana from Sanapaw. On July 23, 2002,

Matchopatow exchanged $40 for joints and a $20 bag of

marijuana. 

The police officers present on July 3, 2002 were Officer

Keith Sorlie and Officer David Wynos. Officer Sorlie testified at trial that Matchopatow returned to the undercover

car with “two baggies of marijuana.” Officer Sorlie had seen

marijuana numerous times previously and stated that the

substance in Matchopatow’s baggies appeared to be marijuana. Officer Sorlie then showed the baggies to Officer

Wynos, who also recognized the substance purchased from

Sanapaw as marijuana.

The police officers present on July 23, 2002 were Officers

Sorlie and Wynos, as well as Shawano County Sheriff’s

Deputy Gerald Thorpe. Deputy Thorpe has extensive experience investigating drug cases, including cases involving

marijuana. Based upon his prior experience, Deputy Thorpe

identified the materials purchased from Sanapaw as

marijuana cigarettes and a baggie of what appeared to be
No. 03-2786 3

marijuana. Officers Sorlie and Wynos agreed that the

substance purchased from Sanapaw on July 23 was marijuana. 

The baggies and joints that Sanapaw sold on July 3

and July 23 were analyzed by Michelle Zimmerman, a

forensic scientist at the Wisconsin State Crime Laboratory.

Zimmerman, a chemist, is trained to analyze evidence for

the presence of controlled substances. Her analysis of the

substances at issue in this case revealed that the greenishbrown plant material sold by Sanapaw contained both

tetrahydrocannabinol (“THC”) and other cannabinoids.

Zimmerman explained that THC occurs naturally only in

marijuana, and although it can be synthesized, the presence

of other cannabinoids is not consistent with synthetic THC.

Zimmerman further testified that her visual inspection of

the material revealed tiny cystolith hairs that are characteristic of marijuana leaves. Based upon this, Zimmerman

concluded that the substance procured from Sanapaw was

marijuana.

Sanapaw was arrested by law enforcement officers on

November 6, 2002. When Sanapaw was informed that he

was charged with selling marijuana, he replied, “Why don’t

you go after the coke dealers? I just sell marijuana to make

ends meet.” 

 Sanapaw was subsequently indicted for knowingly and

intentionally distributing marijuana on July 3, 2002 and

July 23, 2002. His jury trial took place on February 11 and

12, 2003. The substances sold by Sanapaw were entered

into evidence, and the jury was allowed to examine the

plant-like material wrapped within two plastic bags and

sealed with labels. Sanapaw was convicted on February 12,

2003, and now appeals.
4 No. 03-2786

1 Although Sanapaw provides no citations in his brief to establish

the polytypic nature of marijuana, United States v. Walton

indicates that “the possible polytypical status of marijuana” was

discovered in the late 1960’s. 514 F.2d at 203.

II. DISCUSSION

Sanapaw’s first issue on appeal is whether the district

court properly instructed the jury that marijuana “means

all species of marijuana containing tetrahydrocannabinol . . . .” Sanapaw acknowledges that the jury instruction

conforms with this Court’s definition of marijuana in United

States v. Lupo, 652 F.2d 723, 728 (7th Cir. 1981). However,

Sanapaw argues that Lupo was wrongly decided and

amounts to improper legislation by the judiciary. We

disagree.

It is true that in the Controlled Substances Act of

1970 (“the Act”), Congress defined marijuana to include “all

parts of the plant Cannabis sativa L.,” rather than “all

species of marijuana containing tetrahydrocannabinol.”

See 21 U.S.C. § 802(16). However, it is also true that when

the Act was drafted, Congress believed that marijuana was

monotypic—that is, Congress believed that Cannabis sativa

L. was the only type of marijuana. See United States v.

Walton, 514 F.2d 201, 203 (D.C. Cir. 1975). Assuming that

Cannabis is polytypic,1

 the question thus becomes whether

it would be unreasonable to apply the Act only to the

species of marijuana known as Cannabis sativa L. 

This Court, and every other court that has decided

this issue, has concluded that it would be manifestly unreasonable to interpret the Act to apply solely to Cannabis

sativa L. See, e.g., Lupo, 652 F.2d at 728; Walton, 514 F.2d

at 203; United States v. Gagnon, 635 F.2d 766, 770 (10th

Cir. 1980); United States v. Maskeny, 609 F.2d 183, 188 (5th

Cir. 1980); United States v. Kelly, 527 F.2d 961, 964 (9th

Cir. 1976); United States v. Gavic, 520 F.2d 1346, 1352 (8th
No. 03-2786 5

Cir. 1975); United States v. Dinapoli, 519 F.2d 104, 106 (6th

Cir. 1975); United States v. Honneus, 508 F.2d 566, 574 (1st

Cir. 1974); United States v. Kinsey, 505 F.2d 1354, 1354 (2d

Cir. 1974). The legislative history of the Act indicates that

the purpose of banning marijuana was to ban the euphoric

effects produced by THC. See Walton, 514 F.2d at 202.

However, all species of marijuana possess THC. See id. It is

absurd to believe that Congress intended to ban the

euphoric effect of one species of marijuana but not the exact

same euphoric effect of other species of marijuana, and we

refuse to adopt such an interpretation. As even Sanapaw

admits, strict construction of statutory language “is to be

avoided when the result would be senseless or clearly at

odds with the evident purpose of the statute.” See Veprinsky

v. Fluor Daniel, Inc., 87 F.3d 881, 888 (7th Cir. 1996). 

 Congress’s thirty-year acquiescence to a definition of

marijuana that includes all Cannabis containing THC indicates that the courts have properly interpreted the Act.

We therefore decline Sanapaw’s invitation to overturn

United States v. Lupo. We conclude that the jury instruction

given by the district court, proper under Lupo, was not in

error.

Even if the jury instruction was proper, Sanapaw argues

that the government did not provide sufficient evidence

to prove that he sold marijuana rather than some other

vegetation containing THC. Sanapaw first insists that the

government’s case must fail because no witness identified

the substance he sold as Cannabis. He further asserts that

it is not enough that numerous officers stated that the substance appeared to be marijuana because none of the officers were qualified as an expert who could testify that it

was actually marijuana. Finally, Sanapaw contends that

the government failed to offer evidence that the substance

was not one of the legal parts of the marijuana plant,

namely, its stalks, fiber, or sterilized seeds. Sanapaw’s argument is a nonstarter.
6 No. 03-2786

In a challenge to the sufficiency of the evidence, this

Court “view[s] the evidence in the light most favorable to

the prosecution and will reverse a conviction only if no rational trier of fact could have found the essential elements

of the offense charged beyond a reasonable doubt.” United

States v. Peters, 277 F.3d 963, 967 (7th Cir. 2002). When a

defendant is charged with the distribution of a controlled

substance, “the government need not prove the identity of

a controlled substance by direct evidence, as long as the

available circumstantial evidence establishes its identity

beyond a reasonable doubt.” United States v. Dominguez,

992 F.2d 678, 681 (7th Cir. 1993). Such circumstantial

evidence includes: “on-the-scene remarks by a conspirator

identifying the substance as a drug; lay-experience based on

familiarity through prior use, trading, or law enforcement;

and behavior characteristic of drug sales.” Id. In other

words, neither expert testimony nor a chemical test of the

substance sold is required to prove distribution of a controlled substance. 

In this case, the government presented ample evidence

from which a rational jury could conclude that Sanapaw

distributed marijuana. Specifically, three law enforcement

officers with prior experience in drug detection testified

that the substance appeared to be marijuana. Additionally,

Matchopatow, a marijuana user, testified that he asked

Sanapaw to sell him marijuana and that Sanapaw did sell

him marijuana. Zimmerman, a chemist who analyzes controlled substances, testified that the substance sold by

Sanapaw contained THC as well as other cannabinoids

found in marijuana but not in synthetic THC. Finally, when

Sanapaw was arrested he admitted to selling marijuana “to

make ends meet.” 

The government also presented sufficient evidence to

prove that the marijuana Sanapaw sold was not one of the

legalized parts of the plant. 21 U.S.C. § 802(16) excludes

from the definition of marijuana “the mature stalks of such
No. 03-2786 7

plant, fiber produced from such stalks, oil or cake made

from the seeds of such plant . . . or the sterilized seed of

such plant.” Zimmerman, a forensic scientist, testified that

the substance Sanapaw sold was a greenish-brown plant

material with cystolith hairs characteristic of marijuana

leaves. Marijuana leaves are indisputably not a legal form

of the marijuana plant. Moreover, if the jury had any doubt

about Zimmerman’s testimony, they had the opportunity to

examine the marijuana themselves.

When every reasonable inference is drawn in favor of

the government, as it must be at this stage, it is clear that a

rational jury could have found that Sanapaw distributed

marijuana containing THC. As we earlier held, the

Controlled Substances Act of 1970 banned all forms of

marijuana containing THC. The government need not present expert botanical testimony regarding the genus and

species of a controlled substance to prove its case.

III. CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-27-04