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 The law can change rapidly and information in this blog can become outdated.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.
Regardless of California law, the Fresno Bee reports that the feds are still busting people caught with marijuana in Yosemite National Park. According to the Bee, Yosemite issued 465 marijuana citations and made 123 pot-related arrests in the past two years.
Today's Sacramento Bee reports that Luke Scarmazzo and Ricardo Montes have sought clemency from President Obama to reduce their federal marijuana trafficking sentences of 262 and 240 months, respectively. The story says they opened Modesto's first medical marijuana dispensary in 2004. But no luck yet for the pair as I didn't see their names on today's White House's list of the 173 persons granted sentence commutations and 78 pardoned inmates. In fact, Dolly Ann Chamberlain is the only EDCA defendant on the list. She received a pardon after being convicted of conversion of government money and receiving a probation sentence in 2002. But there is still time for those waiting as the White House said it expects there will be more clemency grants before Obama leaves office.
On a somewhat related note, according to Politico, Newt Gingrich has suggested that President-Elect Trump should consider prospectively pardoning his family members for all the crimes they may commit while Trump is in office:
“In the case of the president, he has a broad ability to organize the White House the way he wants to. He also has, frankly, the power of the pardon,” Gingrich said. “It’s a totally open power. He could simply say, ‘Look, I want them to be my advisers. I pardon them if anyone finds them to have behaved against the rules. Period. Technically, under the Constitution, he has that level of authority.”
In other words, the rule of law doesn't apply to Trump and his family.
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.
Today, the EDCA U.S. Attorney's Office filed this opposition to defendant Steven Adgate's motion to stay his prison sentence based on the Ninth Circuit's recent McIntosh opinion, which held that an Appropriations Act of Congress (§ 542) barred the Department of Justice from expending funds to prosecute individuals who were in compliance with state medical marijuana laws. No word on the hearing date yet.
Tuesday, I blogged about the Ninth Circuit's McIntosh opinion, which held that the Appropriations Act barred the federal government from prosecuting medical marijuana cases where the defendants were in compliance with state law. Today, I learned that Sacramento attorney Bill Portanova filed this motion to stay his client's prison sentence in United States v. Adgate, No. 2:12-CR-00198-MCE, based on the McIntosh decision. I'd expect many more McIntosh-based motions to follow.
In U.S. v. McIntosh, No.15-10117, the Ninth Circuit held today that the Appropriations Act passed by Congress bars the federal government from prosecuting medical marijuana cases that comply with state law. And from a conservative "states' rights" panel. Here is the opinion's summary:
In ten consolidated interlocutory appeals and petitions for writs of mandamus arising from three district courts in two states, the panel vacated the district court’s orders denying relief to the appellants, who have been indicted for violating the Controlled Substances Act, and who sought dismissal of their indictments or to enjoin their prosecutions on the basis of a congressional appropriations rider, Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332-33 (2015), that prohibits the Department of Justice from spending funds to prevent states’ implementation of their medical marijuana laws.
The panel held that it has jurisdiction under 28 U.S.C. § 1292(a)(1) to consider the interlocutory appeals from these direct denials of requests for injunctions, and that the appellants have standing to invoke separation-of-powers provisions of the Constitution to challenge their criminal prosecutions.
The panel held that § 542 prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by state medical marijuana laws and who fully complied with such laws. The panel wrote that individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized, and that prosecuting such individuals does not violate § 542.
Remanding to the district courts, the panel instructed that if DOJ wishes to continue these prosecutions, the appellants are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law. The panel wrote that in determining the appropriate remedy for any violation of § 542, the district courts should consider the temporal nature of the lack of funds along with the appellants’ rights to a speedy trial.
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).