A very interesting (but legally unsurprising) decision from a federal district court in United States v. Stacy (S.D. Cal. Mar. 2, 2010):
From June 2009 until September 2009, Defendant operated what he claims was a “medical marijuana collective” called “Movement in Action,” located at 1050 South Santa Fe Avenue, Vista, California. According to Defendant, he took great care to make sure that his cooperative was formed and operated in compliance with California law, specifically the Compassionate Use Act (“CUA”) and the Medical Marijuana Program Act (“MMPA”), Cal. Health & Safety Code §§ 11362.5, et seq. , 11362.7.In July and August of 2009, Defendant sold marijuana on three separate occasions to an undercover detective from the San Diego Sheriff’s Office. Each time, Defendant charged $60 for an eighth of an ounce of marijuana.
On September 9, 2009, there was a county-wide raid, which resulted in the arrests of Defendant and thirteen other individuals who operated collectives in San Diego. DEA agents executed search warrants at Defendant’s home and business, seizing 96 marijuana plants, marijuana-laced food products, marijuana-related equipment and paraphernalia, business records, and a fully-loaded FEG semi-automatic pistol….
Defendant contends that this prosecution violates his due process rights because Defendant reasonably believed that his collective was lawful based on his research of California law, his consultation with an attorney, statements made by Barack Obama when he was a presidential candidate in addition to statements made by other federal officials, and the Supreme Court’s refusal to hear cases involving medical marijuana. Defendant argues that the Court should dismiss this case as a violation of his due process rights or, in the alternative, permit him to present an entrapment-by-estoppel defense at trial.
A criminal prosecution violates due process if it is the result of “entrapment by estoppel.” United States v. Tallmadge, 829 F.2d 767, 773-75 (9th Cir.1987). “Entrapment by estoppel” is the unintentional entrapment by an official who mistakenly misleads a person into a violation of the law. Id. at 773 (9th Cir.1987). To succeed under this theory, the defendant must show “that the government affirmatively told him the proscribed conduct was permissible, and that he reasonably relied on the government’s statement.” United States v. Ramirez-Valencia, 202 F.3d 1106, 1109 (9th Cir.2000). A defendant’s reliance is reasonable if “a person sincerely desirous of obeying the law would have accepted the information as true, and would not have been put on notice to make further inquiries.” United States v. Lansing, 424 F.2d 225, 227 (9th Cir.1970).
Defendant has not established that he is the victim of entrapment by estoppel. Defendant has not pointed to any affirmatively misleading statement by a federal official sanctioning his conduct under federal law. Defendant points to the following statement made by Barack Obama when he was a presidential candidate: “[M]y attitude is that if it’s an issue of doctors prescribing medical marijuana as a treatment for glaucoma or as a cancer treatment, I think that should be appropriate because there really is no difference between that and a doctor prescribing morphine or anything else …. I think the basic concept that using medical marijuana in the same way with the same controls as other drugs prescribed by doctors, I think that’s entirely appropriate. What I am not going to be doing is using Justice Department resources to try to circumvent state laws on this issue.”
Defendant also points to a statement by Ben LaBolt, Obama campaign spokesman, that: “Voters and legislators in the states … have decided to provide their residents suffering from chronic diseases and serious illnesses like AIDS and cancer with medical marijuana to relieve their pain and suffering. Obama supports the rights of states and local governments to make this choice-through he believes medical marijuana should be subject to (U.S. Food and Drug Administration) regulations like other drugs.” LaBolt also indicated that Obama would end U.S. Drug Enforcement Administration raids on medical marijuana suppliers in states with their own laws.
In addition, Defendant relies on certain statements by U.S. Attorney General, Eric Holder. During a press conference on February 24, 2009, in response to a question whether raids of medical marijuana clubs established under state law represented American policy going forward, Holder stated, “No, what the president said during the campaign, you’ll be surprised to know, will be consistent with what we’ll be doing in law enforcement. He was my boss during the campaign. He is formally and technically and by law my boss now. What he said during the campaign is now American Policy.” On March 19, 2009, Holder explained that the Justice Department had no plans to prosecute pot dispensaries that were operating legally under state laws.
Defendant’s reliance on the above-quoted statements is problematic for several reasons. First of all, as pointed out by the Government, Defendant does not state that he personally read or heard these statements prior to engaging in the conduct that forms the basis of this criminal case. Furthermore, the comments by then-candidate Obama and his campaign spokesman cannot be deemed representations of the federal government regarding drug-prosecution policy.
Although Holder was Attorney General when he made the statements at issue, his statements do not constitute affirmative representations that Defendant would not be prosecuted under federal law. Holder’s comment that “what [Obama] said during the campaign is now American Policy” is vague and provides no real guidance as to what the so-called “American Policy” is. Similarly, Holder’s statement that the Justice Department “had no plans” to prosecute pot dispensaries that were operating legally under state laws was a loose statement that left open the possibility the Justice Department could change its “plans” or could choose to prosecute medical marijuana dispensaries on a case-by-case basis.
Defendant has not identified any affirmative representations by the federal government that marijuana collectives formed and operated in compliance with California law would not be investigated or prosecuted under federal law under any circumstances. Moreover, unlike the cases in which convictions were reversed on the ground of entrapment by estoppel, nobody with authority at any time personally told Defendant that his actions were permissible under federal law. See, e.g., Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965) (reversing conviction of persons who were arrested for picketing across the street from a courthouse because the defendants were given permission to hold their demonstration at that location by the Chief of Police); United States v. Tallmadge, 829 F.2d 767 (9th Cir.1987) (defendant’s conviction for being a felon in possession of a firearm was reversed because a federally licensed firearms dealer told him that he could purchase firearms after his prior felony conviction was reduced to a misdemeanor).
Even if Obama’s and Holder’s statements can be viewed as establishing a general policy against prosecuting marijuana dispensaries operating legally under state law, a reasonable person would not rely on these statements as an assurance that he or she would not be prosecuted under federal law. Defendant could have sought specific guidance regarding the applicability of federal law to his situation. However, Defendant admittedly did not contact anyone within the Department of Justice or any other federal agency.
In concluding that his actions did not violate federal law, Defendant also allegedly relied on California law, including the California Attorney General’s “Guidelines for the Security and non-Diversion of Marijuana Grown for Medical Use,” his attorney’s advice, and articles about the Supreme Court refusing to hear cases involving medical marijuana. The Court need not analyze these other sources of information because they are only relevant for purposes of determining the reasonableness of Defendant’s reliance on affirmative misrepresentations by the federal government. Since there were no affirmative misrepresentations by the federal government, the Court’s due process inquiry is at an end….
Defendant contends that his prosecution is in direct conflict with U.S. Department of Justice Policy, specifically, a Department of Justice Memorandum dated October 19, 2009 (“Memorandum”). Defendant argues that the Memorandum reaffirmed the federal policy of not prosecuting individuals who are in compliance with state law.
The Court does not find Defendant’s prosecution to be inconsistent with the Memorandum. The Memorandum provides “guidance regarding resource allocation” and “does not ‘legalize’ marijuana or provide a legal defense to a violation of federal law.” The Memorandum explains:
As a general matter, pursuit of these priorities [the prosecution of significant traffickers of illegal drugs and the disruption of illegal drug manufacturing and trafficking networks] should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources. On the other hand, prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department. To be sure, claims of compliance with state or local law may mask operations inconsistent with the terms, conditions, or purposes of those laws, and federal law enforcement should not be deterred by such assertions when otherwise pursuing the Department’s core enforcement priorities.The Memorandum lists factors that may indicate illegal drug trafficking activity, including “amounts of marijuana inconsistent with purported compliance with state or local law” and “financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law.” The Memorandum stresses, “[N]othing herein precludes investigation or prosecution where there is a reasonable basis to believe that compliance with state law is being invoked as a pretext for the production or distribution of marijuana for purposes not authorized by state law.” The determination of whether to prosecute marijuana cases is to be made on a “caseby-case basis.”
According to the Memorandum, an individual is not insulated from prosecution under the CSA just because he ostensibly complies with California law. Federal prosecuting authorities are free to investigate or prosecute individuals if, in their judgment, there is reason to believe that state law is being invoked to mask the illegal production or distribution of marijuana. Based on the evidence in this case, federal authorities apparently concluded that Defendant is operating a commercial enterprise that unlawfully sells marijuana for profit and determined that prosecution would be appropriate. The fact that Defendant disputes that his collective was a business run for profit does not preclude federal authorities from drawing their own conclusions and choosing to prosecute this case.
Even if Defendant’s prosecution were contrary to the guidance set forth in the Memorandum, dismissal of the Indictment would not be warranted. Defendant has not pointed to any authority for dismissing an indictment because it is contrary to internal Department of Justice guidelines. See United States v. McInnis, 601 F.2d 1319, 1323 (5th Cir.1979) (refusing to dismiss an indictment based on a policy set forth in an internal guideline of the Department of Justice). Indeed, the Memorandum specifies that it is not intended “to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter …. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.” …
Dilan Esper says:
Yep. Given the Supreme Court’s rulings in Raich and Oakland Cannibis Buyer’s Cooperative, this is a no-brainer.
That said, it’s a nice reminder that even though Obama moved slightly in the direction of sanity when he reversed some of Ashcroft’s policies on medical marijuana, we still have a long way to go to even attain a semblance of state sovereignty on this issue (let alone actually allowing people the basic freedom to decide to take a medication that might be pleasurable as well as therapeutic).
March 10, 2010, 5:24 pmSuperSkeptic says:
If Obama is serious, he should get a prompt pardon then, no?
March 10, 2010, 5:26 pmOrenWithAnE says:
Seem quite correct — Holder promised not to prosecute those in strict compliance with State Law, characteristically giving himself enough wiggle room in cases such as these.
March 10, 2010, 5:27 pmSteve says:
It’s like the difference between saying “there won’t be any traffic cops on that road” and “speeding is now legal on that road.”
March 10, 2010, 5:35 pmDave N. says:
Right result on the merits. That said, the federal government should get out of the business of enforcing marijuana laws and let states decide for themselves how strict, or non-existent, they want them to be.
March 10, 2010, 5:36 pmOrenWithAnE says:
Not if he was not in strict compliance with the CA law (even if the CA authorities are lax about strict enforcement).
He never promised (and explicitly hedged his promise against) letting folks use the medical law as cover for a ‘traditional’ drug dealing outfit.
March 10, 2010, 5:52 pmOrenWithAnE says:
Or “We will look the other way if you are speeding to the hospital” and “you can speed if there is incidentally a hospital in the direction you are traveling”.
The factual record for the plaintiff here does not make for a good poster-child for the MMJ community.
March 10, 2010, 5:53 pmBob Taylor says:
In a case like this there’s many arguments that could be made, both for and against the ruling. So I’ll confine my comment to just one small point. If the sheriffs department found , during their initial investigation, that the defendant was violating state law, he should have been tried in state court. If he was not in violation of state law, no evidence should have been passed along to federal authorities. This is an indication that the sheriffs department has decided to overrule the vote of the people and circumvent california state law.
March 10, 2010, 5:55 pmEMB says:
So basically, the police investigate people who they suspect may be violating the state law, but if they fail to gather sufficient evidence, they just charge the guy under the federal law instead, but these are the only circumstances under which anyone would be charged with breaking the federal law?
“Wiggle room” like that doesn’t sound like due process to me.
March 10, 2010, 5:57 pmDave N. says:
As I have said on other occassions, even though I am a prosecutor, I am opposed to federal prosecutions based on state investigations, unless the state actors were part of a joint federal-state task force of some kind.
I do not like the idea of police agencies “shopping” cases to the feds just because a local prosecutor declines the case.
From the facts supplied, I cannot tell whether the sheriff’s department notified the DEA on its own volition or was part of a joint anti-drug task force with the DEA. If it was the former, I would likely have a problem with it. If it was the latter, I probably would not.
(The link is to Pacer and thus the decision is unavailable to me except as quoted by EV)
March 10, 2010, 6:13 pmKazinksi says:
There is no doubt the primary purpose of California’s medical marijuana laws is to create a purple haze in order to make recreational use of medical marijuana easier. It has largely succeeded, despite the fact that there are occasional federal and state prosecutions like this.
March 10, 2010, 6:34 pmJ. Aldridge says:
He would have a much stronger argument that it is the Feds who are violating the law since they have no authority to ban and enforce anything within a state under the Constitution.
March 10, 2010, 6:52 pmOrenWithAnE says:
They found concurrent violations of State and Federal law, there is no reason that they cannot share their findings with the DEA. It happens all the time that an agency finds such a concurrent violation and then shops it to the prosecutor with the most bite.
You are confused, the LEOs of the State (State/county/local) cannot “charge the guy under the Federal law”, they can only ask the DEA to investigate and the DEA then decides how to proceed.
Moreover, when conduct is potentially in violation of both Federal and State law, there is no requirement that the government present a weak State law case to State Court when they have a rock-solid Federal one.
March 10, 2010, 7:10 pmOrenWithAnE says:
I’m not sure what part of due process gives you the right to demand performance of the AG’s promise in explicit contradiction to the conditions he placed on that promise. Holder promised not to prosecute genuine MMJ providers — this guy was simply not one of them.
Do you mind when they shop it between city courts & state courts? This was a fairly common occurrence in IL when I grew up there — a great way for the police to not to simply let someone off the hook but without subjecting them to draconian maximum State penalties. Many towns explicitly created laws that were concurrent violations of State law (esp drug/DUI) to give officers this choice.
Can you elaborate why the form is not desirable? After all, the DEA can simply tell them to buzz off if the investigation is not a priority for the DOJ.
March 10, 2010, 7:14 pmDave N. says:
OrenWithAnE,
I agree that there is nothing to prohibit state authorities from sharing their evidence with the DEA. I disagree with it as a matter of policy, not as a matter of law.
March 10, 2010, 7:17 pmOrenWithAnE says:
Can you elaborate why it’s not desirable as a matter of policy?
March 10, 2010, 7:27 pmDennis Nicholls says:
I still think a 21st Amd. case should be argued. Is marijuana an “intoxicating liquor” for the purpose of the 21st Amd.? If so then the Federal Govt. has NO jurisdiction and ONLY state law applies.
March 10, 2010, 7:29 pmJ. Aldridge says:
I would argue under the Commerce Clause and ask why the Feds don’t ban and conduct raids on marijuana in Japan since the power to regulate commerce is the same with countries as it is with states.
March 10, 2010, 7:34 pmDave N. says:
OrenWithAnE,
I think it is bad policy because it runs counter, IMHO, to the concept of sovereignty that each state enjoys. Police are trained in the enforcement of state laws, first and foremost. When police make a local arrest, under the normal course of things, the case is referred to the local prosecutor, who is either directly or indirectly part of the same sovereign entity.
Police “shopping” a case to federal officials for prosecution subverts the state process of having police conduct invetigations and state prosecutors deciding the strength or weakness of a case (and whether or not to file charges) into a process where police can get a second bite by shopping the case with the feds.
By the way, in response to your Illinois hypothetical, I don’t have a problem with that. I assume that Illinois police regularly submit cases to both the city and county prosecutors, both of whom are part of the same sovereign: the State of Illinois.
March 10, 2010, 7:37 pmCrazyTrain says:
I’ll take the bait. Where do they have the authority to “ban and enforce anything” then?
So, if a private army is being raised in California, with the express purpose of overthrowing the United States Government, the federal government is powerless to do anything?
BINGHAM!!!!!!!!!!
March 10, 2010, 7:39 pmKazinksi says:
We have J. Aldrige on the one side of the debate, and Congress, the President, Department of Justice, and the Supreme Court on the other side. I am deeply sympathetic to the view that the constitution really means what your own personal interpretation tells you it means, but as a practical matter, I think the issue has been decided.
March 10, 2010, 7:45 pmOrenWithAnE says:
You assume incorrectly — the police often don’t submit the cases to the county when they don’t want the (invariably more strict) State law coming down on the defendant. Our town’s local drug laws, for instance, gets a good bit of exercise this way because we have no desire to send our kids to jail for 30 days on account of a joint.
I don’t think the police would refer things to city court if that didn’t preclude it going to county (de facto, at any rate — the prosecutor could charge it despite not being referred but they are busy folks).
The State process only applies to violations of State law though. That is, I don’t see any reason why State prosecutors (or any other State agency) should have a say in what cases the DEA brings based on Federal law.
State sovereignty in matters concurrent to both dual sovereigns is not as straightforward as you mention.
[ I suppose that the CA legislature could pass a law forbidding its officers from cooperating with any DEA investigation into MMJ card-holders. ]
March 10, 2010, 7:53 pmJeff R. says:
Dennis Nicholls: expanding “liquors” to non-drinkable things seems like a profound stretch. But even if you do then try to at least legalize Hemp wine or Pot Brownie Smoothies or the like, I strongly suspect that sometime in the past ninety years or so somebody tried to argue that point with Laudinum and established a contrary precident for you…
March 10, 2010, 8:00 pmDave N. says:
I don’t either. My issue is state police officials running to the feds because they don’t like the outcome based on state law.
I certainly understand the concept of dual sovereignty and realize either or both (with some state statutory exceptions)sovereigns have the authority to prosecute. My policy preference is that if the feds want to prosecute federal crimes in a specific state, the feds should be relying on their own resources to investigate and not be relying on state actors to provide their cases to them.
March 10, 2010, 8:11 pmDave N. says:
Oren (which is much easier to type than “OrenWithAnE”),
I wasn’t clear in responding to your Illinois hypothetical. What I meant is that local police are used to submitting cases to either the city prosecutor or the county prosecutor — not the same case to both, but generally to one or the other.
On the other hand, most locial police are not in the habit of submitting their cases to federal prosecutors.
March 10, 2010, 8:16 pmNot My Leg says:
I agree. His attorney should rest the criminal defense on the Court not following Raich, it is five years old after all. After conviction he can get the case thrown out for ineffective assistance of counsel, and he can sue his attorney for malpractice.
He’ll still end up in prison, but he’ll delay it a little while, get a bunch of money, and get a bad defense attorney disbarred.
March 10, 2010, 8:18 pmJ. Aldridge says:
The issue was decided by the states when they approved and adopted the constituion. How was commerce regulated by the states and other countries with each other back in those days?
Thomas Jefferson: “To make a thing which may be bought and sold is not to prescribe regulations for buying and selling. Besides, if this were an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every state, as to its external.”
Madison said the regulation of commerce was a “preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”
March 10, 2010, 8:20 pmDilan Esper says:
There is no doubt the primary purpose of California’s medical marijuana laws is to create a purple haze in order to make recreational use of medical marijuana easier.
Well, it’s both. Yes, there were a lot of people who wanted this to be a backdoor path to legalization, and it has had that effect to some extent, but there was also very much a feeling that the Feds were not being honest about potential medical uses because of moralism in opposition to anyone being able to take a medication that might actually be fun to take.
March 10, 2010, 8:22 pmJ. Aldridge says:
Armies in the South were being formed, equipped and trained for war against the North and congress could do nothing because there was no invasion or application from any state for protection.
March 10, 2010, 8:27 pmArthur Kirkland says:
Drug warriors are one of my favorite reasons for disliking conservatism and celebrating the great libertarian-liberal alliance responsible for much of America’s progress in recent decades. Until liberals and libertarians can overcome the nanny-staters on the right, however, this defendant’s search for legal problems appears to have been a self-inflicted wound. In current circumstances, marijuana is like torture — you don’t get to indulge just because you find the law inconvenient.
March 10, 2010, 8:36 pmOrenWithAnE says:
Dave, thanks for the thoughtful responses.
Agreed entirely. If the SDC were routinely acting as an investigative body for the DEA/FBI/ATF that would not be good policy. I don’t see the complaint as appropriate here, however.
Perhaps I should be explicit about how I believe the thought process went (purely speculative, obviously):
Sheriff: We got word that so-and-so is selling dope on the street, my officer made a controlled buy from him just last week. He’s selling huge volume for profit and without checking ID cards.
March 10, 2010, 8:44 pmCounty DA: No way I’m taking this — he’s got an MMJ card (and deep pockets) so the case will become complicated and it’s going to be hard to win, even if he was abusing the law in the way your officer’s observed.
Sheriff: You mean you won’t prosecute a clear violation of State law?
County DA: Clear or not, he’s got a good chance of sliding and I got better cases.
Sheriff: Bullshit, I’m calling the DEA.
DEA: I can’t touch this unless the guy is not in “clear and unambiguous compliance with State law”?
Sheriff: Are you kidding? We could litigate this guy’s compliance with State law for months without a good answer.
DEA: Sweet, let me consult my lawyers ……
second history says:
There is no doubt the primary purpose of California’s medical marijuana laws is to create a purple haze in order to make recreational use of medical marijuana easier. It has largely succeeded, despite the fact that there are occasional federal and state prosecutions like this.
Hopefully the purple haze will be lifted by this initiative, currently undergoing signature verification:
March 10, 2010, 9:33 pmChris Travers says:
In this specific case, I think it is undesirable. Basically what you have is a state assurance that there will be no enforcement of an activity that is technically illegal under federal law. What this does is make individuals who comply with state laws subject to arbitrary enforcement of the federal law. Since that can be done arbitrarily under these circumstances, I think it makes a mockery of due process.
March 10, 2010, 9:42 pmChris Travers says:
Let me be more clear.
I have no problem with state and federal sovereigns collaborating and pushing people between state or federal prosecutions when the due process interests of both sovereigns are aligned. In other words, if California had banned all MJ and referred the matter to the DEA, there is no great concern on my part.
However, if the state and federal government draw lines in very different places, so that someone who can clearly comply with all state laws continues to violate federal laws, and if this is a conscious decision on the part of the makers of state law (initiative or legislature), then the state needs to honor both the letter of that law and it’s spirit. This means that the State should not arbitrarily turn over individuals to federal prosecution who are even arguably complying with state law.
In essence the state has chosen disharmony with federal law. They shouldn’t be able to use that to arbitrarily throw people in prison.
March 10, 2010, 9:52 pmOrenWithAnE says:
(1) Individuals in CA that violate Federal law were already subject to Federal prosecution. I can’t figure out what is arbitrary about (obviously) breaking the law and then being prosecuted for it.
Perhaps it’s arbitrary because the DOJ has taken the position that they will not prosecute in some cases, but it seems silly to argue that because they don’t prosecute every single possible case it is then a violation of DP to prosecute any such case.
(2) The individual in question was not in “clear and unambiguous compliance” with CA State law, by any stretch of the imagination. This makes him a poor poster child for the
People that do not want to go to prison should not violate Federal law. If you do violate Federal law and are sent to prison, that seems to me certainly not arbitrary — it is done with a clear framework of well-established legislative and judicial precedent. I don’t like Raich any more than the next guy — dura lex sed lex.
March 10, 2010, 10:17 pmOrenWithAnE says:
The last time a State trying to assure such a thing we ended up with a pretty big mess…
March 10, 2010, 10:19 pmOrenWithAnE says:
I don’t believe the San Diego County Sheriff made the decision to turn over the defendant “arbitrarily” either, I think they turned him over because he was in arguable violation of both State and Federal Law but that the Federal case would be far easier to prosecute.
That is, would you really obligate the officers of the State to prefer charges in State court even though the Federal case is stronger? That seems eminently bizarre (not to mention contrary to a few decades of practice vis-a-vis gun laws, drug laws and searches made in compliance with the 4A but not stricter State analogs).
March 10, 2010, 10:24 pmneurodoc says:
And you think you are going to cause him to rethink this idee fixe of his?
March 10, 2010, 10:26 pmOrenWithAnE says:
I should add that your point is well taken (even if not accepted).
The People of California are well within their rights to pass a law forbidding their agents and agencies from officially cooperating with the DEA. Until they do so, however, there seems to me nothing arbitrary or abusive about San Diego County collaborating with the DEA to enforce the law where find it to be strategically or tactically advantageous.
March 10, 2010, 10:26 pmeyesay says:
“In July and August of 2009, Defendant sold marijuana on three separate occasions to an undercover detective from the San Diego Sheriff’s Office. Each time, Defendant charged $60 for an eighth of an ounce of marijuana.” OK, did Defendant request a medical marijuana prescription from the undercover detective, and did the detective provide one?
March 10, 2010, 10:28 pmSuperSkeptic says:
Okay Oren, how about if slavery was banned by the federal government back then (like Marijuana today), but nevertheless Lincoln said: “Look, South Carolina (or California today) any states that have pro-slavery laws, that’s fine, you know, if you’re in compliance with that, then, well, we won’t get involved…”?
Everybody gets the dual sovereignty issues – and you are technically correct in every sense. But you seem oblivious – or at least impervious – to the equitable estoppel arguments arising from Obama and Holder’s “promises” with “wiggle room”.
Do you think it is right to make “promises” like that? (legally aside)
March 10, 2010, 11:05 pmChris Travers says:
Personally I am not sure that the argument I am making above is necessarily an issue with federal law. I do think that we should strongly consider waiving qualified immunity on state LEO’s where the goal is to avoid actually trying the case according to far more lenient state requirements of this sort.
March 10, 2010, 11:10 pmKazinski says:
Oh god no, I hope not. When my wife asks me why I drink so much, I raise my glass in a toast: “BINGHAM!”.
March 10, 2010, 11:18 pmSuperSkeptic says:
Chris Travers, While I am quite sympathetic to your due process argument (ethically), I don’t think it can prevail under our dual sovereignty jurisprudence (legally).
March 10, 2010, 11:26 pmShelbyC says:
Did he make a promise? He’s entitled to set priorities, and there’s nothing wrong with doing so publicly.
March 10, 2010, 11:31 pmSuperSkeptic says:
Clearly not – legally. That’s partially why I put it in quotes and why the court said no reasonable person would’ve relied on it. But we all (should) know damn right well – morally – when we say things, with the purpose of inducing people to rely on them, and then those people do rely on them but to their detriment, that that is wrong. That’s all.
March 10, 2010, 11:47 pmuberVU - social comments says:
Social comments and analytics for this post…
This post was mentioned on Twitter by derherrstiefund: Entrepreneurs, don’t rush out and start up that marijuana dispensary, you’ve always dreamed of owning, just yet: http://bit.ly/daeQ7M...
March 11, 2010, 12:00 amJH says:
“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”
It’s too bad there wasn’t seemingly universal sympathy when the Utah and Idaho Mormons were practicing polygamy in the days of the Morrill Anti-Bigamy Act as there is now with the illegality of marijuana.
Soft-polygamy is the norm nowadays anyhow.
March 11, 2010, 1:37 amOrenWithAnE says:
Holder promised not to prosecute those in clear and unambiguous compliance with State law. As a plain factual matter the defendant cannot possibly claim to in such compliance (if anything, actually, we can make an argument that defendant was quite probably in substantial non-compliance with State law but we have no need for such an extreme argument). So as far as the equitable estoppel goes, there’s no need to even evaluate the strength of the doctrine or the due process implications — Holder’s current representations are in complete agreement with his previous ones.
And when we unreasonably misconstrue others’ representations, we have no right to rely on them. No one could possibly construe “clear and unambiguous compliance with State law” to apply to this guy’s enterprise. Not reasonably, not even unreasonably, not even if he was smoking copious amounts of his own product.
March 11, 2010, 1:43 amneurodoc says:
If you look for such opportunities to imbibe, I would have thought you would have joined the thread Orin Kerr started about the P&I argument a little while ago. Brother Aldridge will oblige you and others there.
March 11, 2010, 2:48 amThe Volokh Conspiracy » Blog Archive » As Predicted, New Justice Department Policy Didn’t Stop Federal Medical Marijuana Arrests in States Where Medical Marijuana is Legal Under State Law says:
[...] This recent district court decision upholding the prosecution of a medical marijuana distributor in California (a state which has legalized medical marijuana under state law), reaches much the same conclusions about the meaning of the memo as I did. Like me, the judge noted the very loose nature of the memo’s restrictions. He also made this relevant point: Even if Defendant’s prosecution were contrary to the guidance set forth in the Memorandum, dismissal of the Indictment would not be warranted. Defendant has not pointed to any authority for dismissing an indictment because it is contrary to internal Department of Justice guidelines…. Indeed, the Memorandum specifies that it is not intended “to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter …. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.” [...]
March 11, 2010, 3:28 amjrose says:
The feds could do that if Japan agrees. But since the states, unlike Japan, aren’t subject to the Supremacy Clause, the feds don’t need the permission of the states.
March 11, 2010, 7:16 amJ. Aldridge says:
Supremacy Clause only covers objects delegated to Congress. Only Supremacy over what citizens within a state my own, and on what condition, is exclusively invested with the states. I suppose under your broken argument there is nothing to prevent the Fed’s from regulating the times you may brush your teeth :-)
But taking your argument seriously for just a moment, you forget the regulation of commerce with other nations would also fall under the Supremacy Clause. So I think there is something very wrong with the current judicial theory of what regulating commerce means.
March 11, 2010, 7:48 amShelbyC says:
$60 an eighth, btw? That’s about twice as much as when I was a kid.
March 11, 2010, 11:34 amArthur Kirkland says:
If terrorism is one-tenth the threat the Terror Warriors claim it to be, how can any prosecutor or detective spare the time to chase doobie-sellers operating in a twilight zone of conflicting laws. (I already assume that San Diego’s streets are the safest in the nation, else how could the conservatives who dominate San Diego’s public life tolerate this foolishness?)
March 11, 2010, 11:39 amOrenWithAnE says:
Yeah, but the new stuff is 2-4 times as potent.
March 11, 2010, 12:07 pmChem_geek says:
Foolishness? Not at all. [i]See[/i] Broken Windows Theory, Rudy Giuliani. Also called, “clearing out the underbrush.”
March 11, 2010, 12:56 pmjrose says:
One more time. Japan is not subject to the Supremacy Clause. The states are.
March 11, 2010, 1:55 pmArthur Kirkland says:
Before incarcerating marijuana users to “clear the underbrush,” wouldn’t it make more sense to pursue the much more common and costly “broken windows” by instituting intense enforcement of tax laws, beginning with identification, prosecution and incarceration of those who falsely claim entertainment, child care, food, educational and similar expenses as “church donations,” those who lie on returns by listing lunches and ballgames with friends as “business entertainment expense,” those who refrain from declaring sports tickets, greens fees, frequent flier awards and similar gratuities as income, and the like? Next, we could move on to seizure-and-forfeiture proceedings aimed at those who permit their underaged children or guests to imbibe a sip of alcohol, or smoke tobacco, on their residential premises or in their vehicles. (That every vehicle associated with a drunken driver, I assume, would go without saying, regardless of the owner’s relationship with the drunken driver.)
If Americans are going to be letter-of-the-law, liberty-disdaining zealots, what possible reason would excuse being anything other than the most cost-effective, revenue-producing, conviction-generating zealots possible?
March 11, 2010, 4:33 pmOTHERSIDE FARMS says:
We would like to exchange links with you. We have an information center in Orange County for all things Medical Marijuana related.
Please visit us at http://www.othersidefarms.com or contact us for a link exchange.
Many thanks for your support in the Medical Marijuana community.
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March 11, 2010, 6:56 pm“If marijuana is so bad for you, explain Michael Phelps?”
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IsTherANonLawyerInTheHouse? says:
Is the sale of marijauna, medical or otherwise, illegal in the state of California?
Is it ethical or otherwise ‘not irregular’ for an attorney to give legal advice on how to either operate or regulate such an activity knowing that it is illegal?
March 11, 2010, 7:02 pmShelbyC says:
Haven’t you seen the Public Service Announcements, man? Don’t you know that marijuana sales finance terrorism?
I’m sitting about two miles from that clinic right now, based on the address.
March 11, 2010, 7:12 pmOrenWithAnE says:
Only sometimes. A dispensary may sell to an individual with a medical card.
The attorney’s job is to explain to the client what is and is not illegal.
March 12, 2010, 12:50 amDr. Funke says:
Baby steps. We are slowly but surely moving towards legalization. We wont get it over night but slowly states are allowing it medicaly and the more the public uses it….or knows people that use it legally….the more acceptable it will be
March 14, 2010, 7:28 pmRoscoe Dossous says:
Back in the old days when their was only 186 dispensaries in Los Angeles, there was only one main website. Suddenly in late 2007, a new kind of site showed up (PotLocator) where the front page was as simple as Google, all you had to do was enter your zip code and you were given immediate results and directions to find your nearest dispensary. This was bliss compared to the yellow book type directories out there at the time. Then, as technology changed, the sites got better and the race began, PotLocator started facing some worthy competition but it’s starting to make more changes. Between me and my spouse we’ve used more dispensary locator websites than you can count.
May 28, 2010, 1:57 pmfreetheboys says:
stop federal prosecutions of state compliant medical marijuana providers. go to http://www.freetheboys.com to learn about a county licensed medical marijuana cooperative that is being prosecuted by the current Obama administration
June 9, 2010, 9:20 pm