Eastern District of California Blog

Ninth Circuit Hears Oral Argument In Fry/Schafer Medical Marijuana Case

This morning, oral argument was held in the Fry/Schafer medical marijuana case before Ninth Circuit judges Richard Tallman, Betty Fletcher, and Johnnie Rawlinson.  Nos. 08-10167, 08-10169 Oral Argument Audio Here.  Assistant U.S. Attorney Anne Pings flew back from Main Justice in D.C. to argue for the government while attorneys Barry Morris and Brenda Grantland represented the defendants. 

In 2007, a Sacramento federal jury found medical marijuana activists Dr. Marion "Mollie" Fry and attorney Dale Schafer guilty of offenses involving marijuana cultivation and distribution.  See U.S. v. Fry & Schafer, No. 05-238-FCD.  Judge Damrell sentenced each to the mandatory minimum five years in prison for offenses involving at least 100 marijuana plants.  The primary issue on appeal involves an entrapment by estoppel claim.  Both were granted bail pending appeal. 

Minute Order Sets Schedule In Harrison Jack Case; Evidentiary Hearing Starts February 28, 2011

MINUTE ORDER 8/31/2010: Due to the unavailability of several counsel and the Court's calendar in October 2010, the Evidentiary Hearing as to defendants' pending motions is hereby SET for the week of February 28, 2011 through March 4, 2011. The Evidentiary Hearing will commence on Monday, February 28, 2011 at 1:30 p.m. in Courtroom #2 before Judge Frank C. Damrell, Jr. The Court has also set aside the week of March 7, 2011 through March 11, 2011, in the event the hearing does not conclude by March 4, 2011. The Motion Hearing set for Friday, October 15, 2010 at 10:00 a.m. still remains in effect.

Justice Kennedy Joins Call For More EDCA District Judges

U.S. Supreme Court Justice Anthony M. Kennedy has joined those calling for Congress to fill vacancies on the federal bench and to authorize additional judgeships courts like the U.S. District Court for the Eastern District of California, based in Sacramento that are struggling to contend with massive caseloads.

Kennedy, speaking at the the 2010 Ninth Circuit Judicial Conference earlier this month, said the Eastern District has a case load three times heavier than the national average.

Sacramento Bee, 8/30/2010

Two Charged With Growing 1,000 Or More Marijuana Plants In Tehama County

A pair of possible illegal aliens suspected of growing marijuana in Tehama County was indicted Thursday in Federal Court in Sacramento.

Jose Pelayo, 35, and Nemesio Reyna Ortega, 19, were indicted for growing at least 1,000 pot plants, said Lauren Horwood, spokeswoman for the U.S. Attorney’s Eastern District of California’s Sacramento office. Pelayo and Ortega, who are both Mexican nationals and suspected of being in the country illegally, were arrested on suspicion of marijuana cultivation on Aug. 6 in Tehama County.

Redding.com, 8/27/10

Arraignment Thursday For Man Charged With Poaching Golden Eagle And Other Migratory Birds

A 41-year-old Porterville man faces federal poaching charges after agents tied him to the alleged killing of a golden eagle and found several bird parts in a subsequent search of his home.

Fresno Bee, 7/26/10.  His arraignment is now scheduled for Aug. 26, at 10 a.m., in Fresno before U.S. Magistrate Judge Gary S. Austin.

Transient Sentenced to 20 Years For Anthrax Hoax and Other Crimes

A 63-year-old man, whom officials describe as a transient, has been sentenced to 20 years in prison for sending anthrax-hoax letters threatening President Barack Obama and for failing to register as a sex offender.

Timothy Cloud pleaded guilty in May and was sentenced Monday by U.S. District Judge William B. Shubb.

According to Cloud's plea agreement, he admitted sending hoax mailings addressed to Social Security Administration offices in Baltimore, Kansas City and New York City. Each contained a white powdery substance to simulate anthrax and an index card with the words "you stole my money" and "die." As a result of the mailing to the New York office, all employees were evacuated and four were quarantined.

Cloud also admitted to sending a letter to President Obama that contained a white powder and an index card with the words, "You are just another lying politision (sic)," with cross hairs between "not this time" and "maybe next time," as well as a newspaper photo of President Obama with cross hairs drawn over his face.

Sacramento Bee, 8/23/10

Ninth Circuit Affirms Fresno Judge's Ruling Rejecting Challenge To Steelhead's Status As Threatened Species

On Friday, the Ninth Circuit affirmed a ruling by Fresno district judge Oliver W. Wanger that had rejected a challenge by Central Valley irrigation districts to the decision of the National Marine Fisheries Service to list the wild steelhead, a type of Pacific salmon, as a threatened species under the Endangered Species Act.  See Modesto Irrigation District v. Gutierrez, 09-15214, 8/20/10

Sacramento Judge Issues TRO Requiring Coke Bottler To Recognize Teamsters

A Sacramento federal judge on Friday ordered the Sacramento Coca-Cola Bottling Co. to recognize a Teamsters Union local as the bargaining agent for its production, distribution and maintenance workers.

The company, a venerable Sacramento business institution established and owned by the Sellers family for 75 years, has been refusing to recognize Teamsters Local 150 since its April merger with the firm's longtime, in-house bottling union, claiming that most of those employees do not want Teamster representation.

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The Teamsters filed a complaint with the National Labor Relations Board alleging that the company was violating federal labor law by refusing to recognize the union; a hearing on the complaint before an administrative law judge is scheduled to begin Wednesday.

The NLRB's acting regional director in San Francisco, Olivia Garcia, has sided with the union, claiming its complaint is meritorious, and she filed a petition in Sacramento federal court asking for a preliminary injunction temporarily halting the company's refusal to recognize the union while the NLRB action – and an almost certain appeal either way it goes to the 9th U.S. Circuit Court of Appeals – is pending.

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U.S. District Judge Frank C. Damrell Jr. granted Garcia's request for an injunction at Friday's hearing in Sacramento federal court and is expected to issue a written order Monday.

Sacramento Bee, 8/21/10

A Second EDCA District Judge Modifies 9th Circuit's Model Reasonable Doubt Instruction

In a prior post, 2/20/09 Post, I noted that a Central District Court Judge in Stoltie questioned the Ninth Circuit's Model Reasonable Doubt Instruction.  I suggested attorneys object to the model instrution and proposed Judge Karlton's standard instruction as an alternative.  2/25/09 Post.  Last week, Judge Wanger in Fresno became the second EDCA district judge I am aware of to modify the Ninth Circuit's standard instruction.  He did so by including additional language that a reasonable doubt may be based on reason, common sense, or "any matter that leads you to question the truth of the charge."  See RD Jury Instruction, 08-224-OWW.  A better formulation than the Ninth Circuit's model instruction in my view.

Ninth Circuit Holds Stolen Valor Act Unconstitutional

In United States v. Alvarez, the Ninth Circuit yesterday held, in a 2-1 decision, that the Stolen Valor Act violates the First Amendment guarantees of free speech.  The Stolen Valor Act prohibits persons from falsely claiming they were awarded a military medal.  It's an appeal from a Central District of California case.  But this decision--if it holds up--would put an end to similar EDCA prosecutions and may provide a path for post-conviction relief for those who have already been convicted.  See, e.g., 3/11/2009 Post.