Eastern District of California Blog

New Sacramento Magistrate Judge Selected

Congratulations to Chief Assistant U.S. Attorney Carolyn K. Delaney, who reportedly has been selected as the next U.S. Magistrate Judge in Sacramento pending final background checks, etc. 

Applications for the Fresno Magistrate Judge opening are being taken through May 4, 2011.

Sac Court Denies BLM Motion To Dismiss Suit Challening Wild Horse Roundup

A Sacramento federal judge on Tuesday denied the U.S. Department of Interior's motion to dismiss a lawsuit challenging last year's roundup and removal of more than 1,500 wild horses and nearly 160 burros from the Twin Peaks Management Area in northeastern California.

Sacramento Bee, 4/21/11

As City Officials Take the Fifth, Are The Feds Looking At Isleton Pot Farm?

From today's 4/20 Sacramento Bee,

Sacramento County District Attorney Jan Scully’s probe into Isleton's licensing of a medical marijuana farm has hardened into a legal war of wills as city officials say they'll refuse to testify when called before a grand jury next week.

Scully subpoenaed City Council members and the city manager of the Delta hamlet April 13, after declaring in a letter that the city's agreements with the medical marijuana grower likely "violate state and federal statutes" and could subject local officials to prosecution.

Now infuriated, City Manager Bruce Pope said officials plan to assert their Fifth Amendment rights at scheduled appearances before a grand jury April 27.

* * *

The Isleton dispute pits a small, cash-poor town that saw a potential bonanza in medical marijuana against a district attorney who wasn't about to stand for a city-endorsed pot plantation in her county.

It also underscores the murkiness of state laws for growing medical marijuana – and efforts by entrepreneurs and revenue-seeking cities to test the hazy limits.

Businessman Michael Brubeck, nephew of jazz legend Dave Brubeck, promised the town of 800 residents a lucrative legal revenue stream – at least $25,000 a month – if it would allow him to build greenhouses for medical marijuana.

* * *

Scully has notified Sacramento U.S. Attorney Benjamin Wagner about the Isleton plan as a potential violation of federal law.

Final "Hmong Case" Appreciation Rally Scheduled For Sac Courthouse, Friday, April 22

A final Harrison Jack case Appreciation Rally is scheduled for this Friday, April 22, 2011, with marchers starting at the State Capital at 8:00 a.m. and proceeding to the Federal Courthouse.  Speeches are scheduled starting at 10 a.m. 

McGeorge Law School Students Prosecute And Defend EDCA Misdemeanors

McGeorge School of Law students both prosecute and defend federal misdemeanor cases before U.S. Magistrate Judges in Sacramento.  [Full disclosure:  I help teach and supervise in the Federal Defender clinic].

U.S. District Judge Kimberly Mueller will be the commencement speaker for McGeorge's 2011 graduating class at the Sacramento Memorial Auditorium on May 14, 2011.

Inmate Claims Sex Abuse By Deputy At Kern County Jail

According to Courthousenews.com, 4/18/11, "an inmate claims Kern County Sheriff's Deputy Michael Lavis sexually assaulted her 'on a regular basis' in jail, threatened her if she told, and 'blackmailed her with naked photos that he took of her.'" 

U.S. Attorney: Villifying Islam Will Not Make Nation Safer

On Saturday, the Sacramento Bee's Opinion page ran this Viewpoint by EDCA U.S. Attorney Ben Wagner, "Villifying Islam Will Not Make Nation Safer".

60 Minutes Story On University of Pacific Rape Case

On Sunday, 60 Minutes ran a piece on the University of Pacific rape case, which resulted in a federal civil suit in the EDCA, which is currently on appeal.  See News10.net, 4/16/11 and my earlier posts, 4/3/11, 12/3/10; 11/17/10; 11/15/10; and 5/29/10.

Marijuana Law (State Edition)

On Friday, I summarized U.S. Attorney Ben Wagner's talk parroting the federal law enforcement view that marijuana is still illegal under federal law from an all-day symposium at the McGeorge School of Law in Sacramento.  At the same time on the state side, the Sacramento Grand Jury apparently issued subpoenas to Isleton City officials, including its police chief, concerning its recent approval of a medical marijuana pot farm that is bringing the cash-strapped city a reported $25,000 per month.   Sac Bee, 4/15/11.   Yesterday, the Bee ran an editorial with more tidbits demonstrating the overlay of federal law on state medical marijuana practices:

A very irritated Isleton City Manager Bruce Pope says the district attorney told him the city's development deal violated the state's medical marijuana law but refuses to tell him exactly how.

Scully isn't talking publicly, but in a letter she sent to city officials last month she references the U.S. attorney for the Northern District of California Melinda Haag, who told city officials in Oakland who were considering an ordinance similar to the one Isleton approved that "individuals who elect to operate industrial cannabis cultivation and manufacturing facilitieswill be doing so in violation of federal law."

Scully goes on to say that Isleton's "agreement and conditional use permit appears to be exactly the type of operation" that Haag has said violates federal law. In a separate letter she goes further, warning Isleton officials that they could face prosecution.

Sacramento Bee, 4/16/11.; see also kcra.com, "Weed War In Isleton," 4/15/11.

Across the country, Montana's governor vetoed a bill to rescind that state's voter-approved, medical marijuana law, saying it would nullify the will of those who voted in the law.  NYTimes, 4/13/11, while Washington State's governor said he'll veto the legislature's changes to Washington's medical marijuana law after the Department of Justice warned of a crackdown.  Seattle Times, 4/14/11.

Finally, in Texas, country crooner Willie Nelson got off with a $100 fine and a "song" after 6 1/2 ounces of marijuana were found in his van, NY Times, 4/2/11, while a poor Oklahoma mother of four without a prior criminal record received a crazy, 12-year prison sentence for selling $31 of pot to an undercover officer.  Tulsa World, 3/22/11; see generally OklahomaWatch.org.  What's wrong with this picture? 

EDCA U.S. Attorney Interprets Ogden Memo: Feds Will Still Prosecute Medical Marijuana Cases

The McGeorge School of Law held a Symposium today entitled "The Road To Legitimizing Marijuana: What Benefit At What Cost?", which included as one of its panelists, EDCA U.S. Attorney Ben Wagner, on the perspective of federal law enforcement.  From what I was told (thanks, TZ), Wagner began by saying, "My message is the shortest:  it's illegal under federal law."  He then feigned a return to his seat.  Returning to the podium, he elaborated: 

First, emphasizing Congress' findings under the Controlled Substance Act (with the limited exception for medical research), Wagner said, "There's the Supremacy Clause - we win."

Second, turning to the October 2009 Ogden memo, Wagner noted that prosecutors retain discretion about what cases to file.  Prosecutors are not duty-bound to prosecute every crime but are also not free to ignore the law or choose between laws.  The memo has been misinterpreted to say the feds will not prosecute medical marijuana cases - not so, he said.  He read the memo to state it is not a good use of federal prosecutorial resources to prosecute cancer patients who use marijuana in connection with their illnesses; however, he noted the "catch-all" provision of the memo stating that it is not a defense:  prosecutors can pursue any case they deem appropriate when there are federal interests at stake.  [See generally, SF Weekly, "Blowing Smoke: Obama Promises One Thing, Does Another On Medical Marijuana," 4/6/11].

Third, he identified three federal interests he believes are at stake in federal marijuana prosecutions:

    (1) the national market in narcotics; he noted a pending Fresno case in which California growers had posted medical recommendations throughout their garden but are believed to have taken their pot to Boston to sell to Jamaican organized crime figures (what, Jamaicans importing California ganja?).

    (2) the intersection between cultivation, organized crime, and violent crime.  "Some growers are well-meaning, others are not."  He mentioned  indoor grows associated with Asian organized crime groups; also, violent crime tied to the value of marijuana, noting an unsolved double-homicide in Trinity County, the shooting of a MJ-garden trespasser in Fresno, and some home invasions.

    (3) marijuana-growing on public lands, including the National Forests.  He estimated that about 75 per cent of eradicated MJ is from public land.  [See also Wagner Extended Vanguard Interview, 11/23/10].

Fourth, he noted his office's success in prosecuting cases where defendants raised a "Prop 215 defense," including two cases where defendants were sentenced to 10-year prison terms.  

Fifth, he said there have been changes in their prosecutions, specifically noting the office had decreased its enforcement of 844 misdemeanor cases of persons possessing marijuana on federal lands; however, there is still a zero-tolerance policy on military bases.

Finally, Wagner said he is often asked the question, "How much is too much?" by persons who want to know what amount is safe to grow or possess.  He said, "I won't answer - sorry.  It's all illegal" and his office retains discretion to prosecute.