John Balazs is an attorney in Sacramento, California, specializing in criminal defense, including appeals, habeas corpus, pardons, expungements, and civil forfeiture actions. After graduating from UCLA Law School in 1989, he clerked for Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit. John was an Assistant Federal Defender in Fresno and Sacramento from 1992-2001. He currently serves as an adjunct professor in clinical trial advocacy at the University of the Pacific McGeorge School of Law. Please email EDCA items of interest to Balazslaw@gmail.com. Follow me on twitter @balazslaw.
This blog is for informational purposes only. Nothing in this blog should be construed as legal advice. The law can change rapidly and information in this blog can become outdated. Do your own research or consult with an attorney.
Yesterday, according to this EDCA US Attorney press release, Judge Mendez sentenced Yan Ebyam to 6 years in prison for two separate conspiracies to grow and distribute marijuana in United States v. Ebyam, No. 2:11-CR-0275-JAM & 2:11-CR-0276-JAM.
Last week, the last remaining defendant in the Schweder marijuana cultivation case before Judge Mueller was sentenced to time served, that is, the few days he had already served in custody before he bailed out in 2011. The defendants were sentenced from a high of 162 months (Bryan Schweder) to time served. Schweder is the only defendant to appeal. The government's motion to dismiss his appeal, No. 16-10272, because of an appeal waiver in his plea agreement is pending before the Ninth Circuit.
For those of you who've complained about the Obama administration's treatment of marijuana, it may get far worse. President-Elect Trump's nominee for Attorney General, Jeff Sessions, has been a staunch foe of marijuana legalization and reportedly once said he was ok with the KKK until he learned they smoked pot. The NY Times notes that under Sessions' leadership the Department of Justice could sue California to stop implementation of recently passed Prop 64, and I'd add the feds' policy of not seeking mandatory-minimum sentences in all drug cases could very well be coming to an end.
Congratulations to Assistant Federal Defenders Matt Bockmon and Sean Riordan and private defense attorney Michael Bigelow for hanging the jury in a marijuana cultivation case before Judge Burrell this afternoon! No. 13-CR-0300-GEB. AUSA Samuel Wong was lead prosecutor. Jury split 9-3 and 11-1 for guilt on the two defendants. No word on whether government will retry.
Also props for attorney Kelly Babineau, who I heard got an acquittal in state court. Client, a doctor, was charged with prescribing pills to patients without any medical necessity. Trial before Sacramento Superior Court Judge Larry Brown, a former EDCA AUSA.
In Rocha v. County of Tulare, 13-17267 (9th Cir. Dec. 17, 2015), the Ninth Circuit affirmed the EDCA court's dismissal with prejudice of a federal action challenging the lawfulness of a search of the plaintiff's property on various legal theories. In the excerpt below, the Court rejected the claim that the officers' knowledge that he possessed a medical marijuana card rendered the search and seizure invalid under the Fourth Amendment and California law, at least under the particular facts of the case:
Rocha’s possession of a medical marijuana recommendation does not grant him an unlimited right to possess and cultivate medical marijuana under California law. See People v. Kelly, 222 P.3d 186, 188 (Cal. 2010); People v. Wayman, 116 Cal. Rptr. 3d 833, 839 (Cal. Ct. App. 2010). Nor does it render the search and seizure violative of the Fourth Amendment on the facts alleged. Without more, Rocha’s allegation that defendants knew he possessed a medical marijuana recommendation does not negate probable cause and render the search and seizure unreasonable under California law. See People v. Clark, 178 Cal. Rptr. 3d 649, 656 (Cal. Ct. App. 2014), review denied (Dec. 17, 2014).
A Mexican citizen was indicted Thursday for alleged marijuana cultivation on Chowchilla Mountain, U.S. Attorney Benjamin Wagner said.
Juan Pedro Jimenez, 39, of Ensenada, Mexico, was found at the cultivation site on Chowchilla Mountain in the Sierra National Forest in Mariposa County on July 8. Federal agents removed 6,919 marijuana plants from the site and found fertilizer, water lines, propane tanks, trash, and other environmentally harmful material. The cultivation allegedly caused extensive damage to the land. Native trees were cut down and hillsides were terraced to plant the marijuana and water was diverted from a nearby creek to irrigate the plants.
Here are the first few paragraphs from today's Sac Bee front-page piece, "Pot raid shatters tribal dreams":
Wendy Del Rosa, one of two warring siblings claiming to lead a tiny Indian band just south of the Oregon border, began urgently writing to the U.S. Attorney’s Office in Sacramento in early May.
The Alturas Rancheria – totaling three members or nine, depending on which faction one believes – had not been content with the earnings from its humble wood-plank gambling house, the Desert Rose Casino. It had pursued various ill-fated ventures, including payday lending and manufacturing cigarettes.
Now, Del Rosa warned in a series of letters to authorities, the tribe was converting a cavernous, tented event center on the reservation into a huge facility for growing marijuana.
“The tribe is acting as a beard for private operators who are attempting to use the medical marijuana law of this state and tribal sovereignty for massive personal profit,” Del Rosa wrote Executive Assistant U.S. Attorney Philip Ferrari in a letter dated May 27.
On July 8, federal and state agents and the Modoc County Sheriff’s Department raided vast marijuana cultivation operations at the Alturas Rancheria and on the neighboring land of a larger sister tribe, the Pit River Tribe. The enforcement actions, which so far have not resulted in criminal charges, revealed an audacious effort to capitalize on the California marijuana market.
Earlier today, special agents with the Bureau of Indian Affairs (BIA) and the Drug Enforcement Administration (DEA), assisted by other federal and state agencies and the Modoc County Sheriff’s Office, conducted a search of two large-scale marijuana cultivation facilities located on federally recognized tribal lands at the Alturas Indian Rancheria and the XL Ranch in Modoc County, United States Attorney Benjamin B. Wagner announced. At both sites, law enforcement seized a total of at least 12,000 marijuana plants and over 100 pounds of processed marijuana. Other than contraband marijuana and items of evidentiary value, no tribal property was seized, and no federal charges are pending.
Congratulations to defense attorney Dina Santos whose client in a marijuana cultivation case was sentenced to time served (close to 4 years) last week rather than the 10-year mandatory minimum requested by the prosecutor in United States v. Cervantes, No. 2:11-CR-0369-JAM. After a "safety valve" evidentiary hearing, Judge Mendez credited the defendant's testimony and the defense's version of events over the government's view and the testimony of the Butte County Sheriff Sargent.
In this order today, Judge Mueller denied defendant Brian Pickard's Motion for Reconsideration of the court's decision denying the defendants' motion to dismiss marijuana cultivation charges based on Section 538 of last December's budget amendment. See also The Leaf Online, 5/27/15.